[Federal Register Volume 67, Number 129 (Friday, July 5, 2002)]
[Proposed Rules]
[Pages 44787-44790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16766]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 67, No. 129 / Friday, July 5, 2002 / Proposed 
Rules  

[[Page 44787]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 1000

[Docket No. FR-4676-N-04]


Indian Housing Block Grant Allocation Formula: Second Notice of 
Intent To Establish a Negotiated Rulemaking Committee; Second Request 
for Nominations; Clarification of Selection Criteria; and Announcement 
of Nominees

AGENCY: Office of the Assistant Secretary for Public and Indian 
Housing, HUD.

ACTION: Second notice of intent to establish a negotiated rulemaking 
committee; request for comments.

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SUMMARY: HUD again announces its intent to establish a negotiated 
rulemaking committee for the purpose of negotiating a proposed rule 
that would revise the allocation formula used under the Indian Housing 
Block Grant (IHBG) Program. HUD first published a notice of intent to 
establish a negotiated rulemaking committee, but due to the events of 
September 11, 2001, HUD was not able to act on this notice within the 
timeframes originally intended, and is therefore publishing a second 
notice.
    This notice therefore: Again advises the public of the 
establishment of the committee; provides the public with information 
regarding the committee; again solicits nominations for selection to 
the committee; explains the nomination procedures and criteria that 
will be used to select members of the committee; announces the names of 
those who successfully completed applications under the original 
notice; and announces the tentative dates for the first meeting of the 
committee.

DATES: Comment Due Date: August 5, 2002.

ADDRESSES: Interested persons are invited to submit comments regarding 
the Committee and its proposed members to the Office of the Rules 
Docket Clerk, Office of General Counsel, Room 10276, Department of 
Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 
20410-0500. Communications should refer to the above docket number and 
title. Facsimile (FAX) comments are not acceptable. A copy of each 
communication submitted will be available for public inspection and 
copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address.

FOR FURTHER INFORMATION CONTACT: Ted Key, Acting Deputy Assistant 
Secretary for Native American Programs, Office of Public and Indian 
Housing, Department of Housing and Urban Development, Room 4126, 451 
Seventh Street, SW., Washington, DC 20410-0500; telephone (202) 401-
7914 (this number is not toll-free). Hearing or speech-impaired 
individuals may access this number via TTY by calling the toll-free 
Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 12, 1998 (63 FR 12349), HUD published its final rule 
implementing the Native American Housing Assistance and Self-
Determination Act of 1996 (25 U.S.C. 4101 et seq.) (NAHASDA). NAHASDA 
reorganized the system of Federal housing assistance to Native 
Americans by eliminating several separate HUD programs of assistance 
and replacing them with a single Indian Housing Block Grant (IHBG) 
Program. In addition to simplifying the process of providing housing 
assistance, NAHASDA provides Federal assistance for Indian tribes in a 
manner that recognizes the right of Indian self-determination and 
tribal self-governance. As required by NAHASDA, HUD developed the March 
12, 1998 final rule with active tribal participation and used the 
procedures of the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570). 
The March 12, 1998, final rule created a new 24 CFR part 1000 
containing the regulations for the IHBG Program.
    Under the IHBG Program, HUD makes assistance available to tribes 
for Indian housing activities. The amount of assistance made available 
to each Indian tribe is determined using a formula that was developed 
as part of the NAHASDA negotiated rulemaking process. A regulatory 
description of the formula is located in subpart D of 24 CFR part 1000 
(Secs. 1000.301-1000.340). Generally, the amount of funding for a tribe 
is the sum of the formula's Need component and the Formula Current 
Assisted Stock (FCAS) component, subject to a minimum funding amount 
authorized by Sec. 1000.328. Based on the amount of funding 
appropriated annually for the IHBG Program, HUD calculates the annual 
grant for each tribe and conveys this information to Indian tribes. An 
Indian Housing Plan (IHP) for the tribe is then submitted to HUD. If 
the IHP is found to be in compliance with statutory and regulatory 
requirements, the grant is made. In Federal fiscal year 2001, HUD 
allocated approximately $643.4 million to Indian tribes.
    Section 1000.306 of the IHBG Program regulations provides that the 
allocation formula shall be reviewed within five years after issuance. 
This 5-year period does not close until March 2003. However, the 
recently enacted Omnibus Indian Advancement Act (Pub. L. 105-568, 
approved December 27, 2000) (Omnibus Act) makes several statutory 
changes to the IHBG allocation formula that HUD has decided to 
implement through rulemaking. Accordingly, HUD believes this would be 
an appropriate time to revisit the IHBG formula and to determine 
whether any changes, in addition to those mandated by the Omnibus Act, 
should be made to 24 CFR part 1000, subpart D.
    The Omnibus Act made two statutory changes concerning allocations 
under the IHBG formula. First, section 1003(g) of the Omnibus Act 
amends section 302(d)(1) of NAHASDA to address the allocation of funds 
for operation and modernization of housing units developed under the 
United States Housing Act of 1937 (42 U.S.C. 1437 et seq.) (1937 Act) 
to tribes with an Indian housing authority that owns or operates fewer 
than 250 units. Further, section 1003(k)(3) of the Omnibus Act amends 
section 502(a) of NAHASDA to provide that any housing that was subject 
to a terminated contract for tenant-based assistance under the 1937 Act 
shall be treated as a dwelling unit for purposes of section 302(b)(1) 
of NAHASDA (which establishes the factors for determination of need 
under the IHBG formula).

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II. Negotiated Rulemaking

    HUD intends to establish a negotiated rulemaking committee for the 
purpose of reviewing HUD's regulations for the IHBG formula (24 CFR 
part 1000, subpart D), and negotiating recommendations for a possible 
proposed rule modifying the formula. The committee membership will 
consist of elected officers of tribal governments (or authorized 
designees of those tribal governments) with a definable stake in the 
outcome of a proposed rule. The committee would be established, and 
conduct its work, in accordance with the procedures of the Negotiated 
Rulemaking Act of 1990.
    The basic concept of negotiated rulemaking is to have the agency 
that is considering drafting a rule to bring together representatives 
of affected interests for face-to-face negotiations. The give-and-take 
of the negotiation process is expected to foster constructive, creative 
and acceptable solutions to difficult problems. The establishment of 
the negotiated rulemaking committee will offer Indian tribal 
governments the opportunity to have input into any changes determined 
to be necessary to improve the distribution of funds under the IHBG 
formula.
    The use of negotiated rulemaking procedures in this matter is 
consistent with the statutory goal of NAHASDA to respect the rights of 
Indian self-determination and tribal self-governance. Negotiated 
rulemaking also conforms to the consultation requirements of Executive 
Order 13175, entitled ``Consultation and Coordination with Indian 
Tribal Governments,'' issued on November 6, 2000 (the Order was 
published in the Federal Register on November 9, 2000 at 65 FR 67249). 
Executive Order 13175 requires that Federal agencies establish regular 
and meaningful collaboration with Indian tribal officials in the 
development of Federal policies that have tribal implications.
    Section 564 of the Negotiated Rulemaking Act of 1990 requires that 
an agency, prior to the establishment of a negotiated rulemaking 
committee, publish a notice in the Federal Register announcing its 
intent to establish the committee, provide certain information 
regarding the formation of the committee, and solicit nominations for 
selection to the committee. The purpose of this notice is to implement 
the requirements of section 564.

III. Committee Membership

    HUD's goal is to develop a committee whose membership reflects a 
balanced representation of Indian tribes. NAHASDA acknowledges the 
government-to-government relationship that exists between the Federal 
Government and federally-recognized Indian tribes. In furtherance of 
this fundamental principle, membership on the committee shall be 
limited to elected officers of tribal governments (or authorized 
designees of those tribal governments). After receiving comments that 
the size of the committee should be increased, HUD has determined that 
a total of 24 tribal representatives will fairly represent the wide 
range of diverse interests needed. Two HUD representatives will 
represent the interests of the Federal Government. HUD will pay travel 
and per diem costs on an as-needed basis.
    Comments were received in response to the original notice stating 
that the definition of ``small, medium and large tribe'' was unclear. 
The Department determined that it was unnecessary to strictly define 
these terms in the original notice, as most tribes can calculate for 
themselves where their interests lie within these categories. That 
determination remains the case. In general, the Department will use 
guidelines that consider tribes with under 250 affordable housing units 
in management as small, those with between 250 and 500 units as medium, 
and those with over 500 units in management as large.
    In response to the original notice on this subject published on 
July 16, 2001 (66 FR 37098), HUD received a total of 44 nominations to 
the committee. Approximately one-half of the nominees provided complete 
applications. The Department wrote to all nominees in November, 2001, 
informing those with complete applications that they would be 
considered for membership on the committee unless HUD was informed by 
them that they were no longer interested, and requesting those with 
incomplete applications to provide the missing information identified 
in the letter within 30 days. Due to mail service delays caused by 
events beyond the control of either the Department or the nominees, 
replies from some nominees have taken longer than 60 days to be 
received. HUD will be extremely flexible in accepting information from 
these nominees. To date, approximately one-half of those with missing 
information have replied to the letters. The Department will continue 
to accept mail replies containing this information as it arrives, or 
until the deadline for submission of the second round of applications, 
whichever is later.
    Listed below are the names of the nominees with complete 
applications. They represent the first round of successful candidates. 
Under this notice, HUD is also announcing that, in the Department's 
opinion, the interests represented by successful candidates do not 
constitute sufficient geographic distribution or diversity. Therefore, 
the Department is soliciting additional applications for a second and 
final nomination process. HUD will review all applications received 
under criteria identical to the original notice, and again afford those 
with incomplete or otherwise deficient applications the opportunity to 
provide the missing or incomplete information. HUD will notify those 
nominees by letter. After the deadline has passed for submission of 
missing or incomplete information, the Department will select 
participants from a consolidated list of both the original and second-
round nominees. No distinctions will be made between original and 
second-round nominees when final selections are made.
    First-round nominees whose names are not listed below may reapply 
under this notice and will be given equal consideration to that given 
to other nominees. No additional opportunities to apply for 
participation on the committee will occur.
    The successful nominees are: Sabrina Jacobs, Bruce LaPointe, Grace 
Bunner, Glenn Edwards, Russell Sossamon, Robert Carlile, Jefferson 
Keel, Marvin Jones, Robert Gauthier, Wayne Ducheneaux, Miles 
McAllister, Gillard White, Jack Sawyers, Darlene Tooley, Michael Reed, 
Phil Bush, Dennis Jose, Judith Marasco, Larry Coyle, Tim King, Herb 
Johns, Dale Jones, Virginia Brings Yellow, Elena Bassett, David Frey, 
Don Kashevaroff, Blake Kazama, Delbert Rexford, Carol Gore, Marty 
Shuravloff, Myron Naneg.
    Section IV of this notice establishes criteria for nominating 
individuals with the requisite experience and expertise, representing a 
wide range of interests (including geographically diverse small, medium 
and large tribes) that are willing and able to work within a consensus 
framework, on determining the need to revise the IHBG allocation 
formula.
    Comments were received that the ``experience'' criterion was 
exclusionary, as it required an applicant to have served as a member of 
a board of commissioners of a housing authority or housing entity, or 
as a board member of another tribal organization. We wish to clarify 
that an employee of a tribe, housing authority or housing entity, or 
other organization is eligible for membership, so long as that person

[[Page 44789]]

meets other requirements and provides evidence that they are authorized 
to represent the interests of the tribe or tribes which the person 
purports to represent. The phrase ``or other relevant experience'' has 
been added to clarify the intent of this criterion.
    HUD invites interested persons and organizations to submit 
nominations for members of this committee. HUD will review the 
nominations submitted for committee membership to ensure that those 
selected will reflect the diversity of tribes in terms of size, 
location, and special circumstances. After review of all the 
nominations, HUD will publish a notice in the Federal Register 
announcing its proposed list of committee members, and soliciting 
public comment on the proposed membership.
    HUD does not believe that each potentially affected tribe must have 
its own representative. However, HUD must be satisfied that the group 
as a whole reflects a proper balance and mix of interests. Negotiation 
sessions will be open to members of the public, so individuals and 
organizations that are not members of the committee may attend all 
sessions and communicate informally with members of the committee.

IV. Nominations for Committee Membership

    Interested persons and organizations may nominate persons for 
committee membership by submitting a written nomination to HUD at the 
address listed in the ADDRESSES section of this notice no later than 
August 5, 2002. Nominations for membership on the committee must 
include:
    1. The name and address of the nominee and a description of the 
interests such person shall represent;
    2. Evidence that the nominee is authorized to represent a tribal 
government or group of tribal governments related to the interests the 
person proposes to represent;
    3. A written commitment that the nominee shall actively participate 
in good faith in the development of the rule under consideration; and
    4. A written statement indicating how the nominee meets the 
following five selection criteria:
     The nominee is an elected tribal officer, or is otherwise 
authorized by the tribal government to act on the tribe's behalf during 
the negotiated rulemaking sessions;
     The nominee has demonstrated housing experience as a 
member of the board of commissioners of a housing authority or housing 
entity, or other organization, or other relevant experience;
     Selection of the nominee will help to ensure the committee 
contains an appropriate balance of representatives from small, medium 
and large Indian tribal governments;
     Selection of the nominee will ensure the geographic 
diversity of the committee membership; and
     The nominee has demonstrated ability to analyze and 
extrapolate complex data.

V. Final Committee Membership

    After reviewing any comments on this notice and all nominations for 
membership, HUD will issue a follow-up Federal Register notice. That 
notice will announce HUD's proposed list of negotiated rulemaking 
committee members, and provide the public with an opportunity to 
comment on the proposed membership. HUD will announce the final 
composition of the negotiated rulemaking committee in a subsequent 
Federal Register notice.

VI. Tentative Schedule

    At this time, HUD's tentative plan is to hold the first committee 
meeting on January 14 and 15, 2003, at the Denver Marriott City Center, 
1701 California Street, Denver, CO 80202. The purpose of the meeting 
will be to orient members to the negotiated rulemaking process, to 
establish a basic set of understandings and ground rules (protocols) 
regarding the process that will be followed in seeking a consensus, and 
to begin to address the issues. Decisions with respect to future 
meetings will be made at the first meeting and from time to time 
thereafter.
    Advance notice of committee meetings will be published in the 
Federal Register. Meetings of the negotiated rulemaking committee will 
be open to the public without advance registration. Public attendance 
may be limited to the space available. Members of the public will be 
provided the opportunity to make statements during the meeting, to the 
extent time permits, and file written statements with the committee for 
its consideration. In the event that the date and time of these 
meetings is changed, HUD will advise the public through Federal 
Register notice.

VII. Applicability of the Federal Advisory Committee Act (FACA)

    Comments were received about the applicability of FACA. The 
provisions of the Federal Advisory Committee Act (5 U.S.C. App.) do not 
apply to this negotiated rulemaking committee. In accordance with 
section 204(b) of the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4, approved March 22, 1995), FACA is not applicable to 
consultations between the Federal government and elected officers of 
Indian tribal governments (or their designated employees with authority 
to act on their behalf).
    The Office of Management and Budget (OMB) issued guidelines 
implementing section 204(b). The OMB guidelines interpret the exemption 
broadly to include State, local, or tribal representatives with the 
authority to act on behalf of the State, local, or tribal government, 
regardless of their actual employment status. As the OMB guidelines 
provide:

    In accordance with the legislative intent, the exemption should 
be read broadly to facilitate intergovernmental communications on 
responsibilities or administration. This exemption applies to 
meetings between Federal officials and employees and State, local or 
tribal governments acting through their elected officers, officials, 
employees, and Washington representatives, at which `views, 
information, or advice' are exchanged concerning the implementation 
of intergovernmental responsibilities or administration, including 
those that arise explicitly or implicitly under statute, regulation, 
or Executive Order. The scope of meetings covered by this exemption 
should be construed broadly to include meetings called for any 
purpose relating to intergovernmental responsibilities or 
administration. Such meetings include, but are not limited to, 
meetings called for the purpose of seeking consensus, exchanging 
views, information, advice, and/or recommendations; or facilitating 
any other interaction relating to intergovernmental responsibilities 
or administration. (OMB Memorandum 95-20 (September 21, 1995), pp. 
6-7, published at 60 FR 50651, 50653 (September 29, 1995)).

    Additionally, on July 10, 2001 (66 FR 37728), the General Services 
Administration (GSA) updated its regulations governing Federal Advisory 
Committee Management, and in these regulations, the GSA codified the 
OMB guidance issued in 1995. GSA's regulations at 41 CFR 102-3.40 
provide that FACA does not apply to committees composed wholly of full-
time or permanent part-time officers or employees of the Federal 
Government and elected officers of State, local and tribal governments 
(or their designated employees with authority to act on their behalf), 
acting in their official capacities. The GSA provides that FACA does 
not apply to these groups with the following qualification:

    However, the purpose of such a committee must be solely to 
exchange views, information or advice relating to the management or 
implementation of Federal programs established pursuant to statute, 
that

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explicitly or inherently share intergovernmental responsibilities or 
administration (see guidelines issued by the Office of Management 
and Budget (OMB) on section 204(b) of the Unfunded Mandates Reform 
Act of 1995, 2 U.S.C. 1534(b), OMB Memorandum M-95-20, dated 
September 21, 1995, available from the Committee Management 
Secretariat (MC), General Services Administration, 1800 F Street, 
NW., Washington, DC 20405-0002).

    That FACA may not apply to this negotiated rulemaking committee 
does not necessarily mean that HUD, or HUD and the committee members, 
would decide not to apply FACA voluntarily. Additional comments on this 
issue are welcome.

    Dated: June 27, 2002.
Michael Liu,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 02-16766 Filed 7-3-02; 8:45 am]
BILLING CODE 4210-33-P