[Federal Register Volume 70, Number 37 (Friday, February 25, 2005)]
[Proposed Rules]
[Pages 9490-9500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3642]



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Part III





Department of Housing and Urban Development





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24 CFR Part 1000



Native American Housing Assistance and Self-Determination Act 
(NAHASDA); Revisions to the Indian Housing Block Grant Program Formula; 
Proposed Rule

  Federal Register / Vol. 70, No. 37 / Friday, February 25, 2005 / 
Proposed Rules  

[[Page 9490]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 1000

[Docket No. FR-4938-P-01; HUD-2005-0003]
RIN 2577-AC57


Native American Housing Assistance and Self-Determination Act 
(NAHASDA); Revisions to the Indian Housing Block Grant Program Formula

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule would make several revisions to the Indian 
Housing Block Grant (IHBG) Program allocation formula authorized under 
section 302 of the Native American Housing Assistance and Self-
Determination Act of 1996. Through the IHBG Program, HUD provides 
Federal housing assistance for Indian tribes in a manner that 
recognizes the right of Indian self-determination and tribal self-
government. HUD negotiated the proposed rule with active tribal 
participation and using the procedures of the Negotiated Rulemaking Act 
of 1990. The proposed regulatory changes reflect the consensus 
decisions reached by HUD and the tribal representatives on ways to 
improve and clarify the current regulations governing the IHBG Program 
formula.

DATES: Comment Due Date: April 26, 2005.

ADDRESSES: Interested persons are invited to submit comments regarding 
this rule to the Regulations Division, Office of General Counsel, Room 
10276, Department of Housing and Urban Development, 451 Seventh Street, 
SW., Washington, DC 20410-0500. Electronic comments may be submitted 
through either:
     The Federal eRulemaking Portal: at www.regulations.gov; or
     The HUD electronic Web site at: www.epa.gov/feddocket. 
Follow the link entitled ``View Open HUD Dockets.'' Commenters should 
follow the instructions provided on that site to submit comments 
electronically.
    Facsimile (fax) comments are not acceptable. In all cases, 
communications must refer to the docket number and title. All comments 
and communications submitted will be available for public inspection 
and copying between 8 a.m. and 5 p.m. weekdays at the above address. 
Copies are also available for inspection and downloading at 
www.epa.gov/feddocket.

FOR FURTHER INFORMATION CONTACT: Rodger J. Boyd, Deputy Assistant 
Secretary for Native American Programs, Room 4126, Office of Public and 
Indian Housing, Department of Housing and Urban Development, 451 
Seventh Street, SW., Washington, DC 20410-5000, telephone, (202) 401-
7914 (this is not a toll-free number). 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

    The Native American Housing Assistance and Self-Determination Act 
of 1996 (25 U.S.C. 4101 et seq.) (NAHASDA) changed the way that housing 
assistance is provided to Native Americans. NAHASDA eliminated several 
separate assistance programs and replaced them with a single block 
grant program, known as the Indian Housing Block Grant (IHBG) Program. 
NAHASDA and its implementing regulations recognize tribal self-
determination and self-governance while establishing reasonable 
standards of accountability.
    The regulations governing the IHBG Program are located in part 1000 
of HUD's regulations in title 24 of the Code of Federal Regulations. 
The part 1000 regulations were established as part of a March 12, 1998 
final rule implementing NAHASDA. In accordance with section 106 of 
NAHASDA, HUD developed the March 12, 1998, final rule with active 
tribal participation and using the procedures of the Negotiated 
Rulemaking Act of 1990 (5 U.S.C. 561-570). The basic concept of 
negotiated rulemaking is to have the agency that is considering 
drafting a rule bring together representatives of the agency and 
affected interests for face-to-face negotiations. HUD has issued a 
limited number of changes to the March 12, 1998, final rule since 
publication of the final rule.
    Under the IHBG Program, HUD makes assistance available to eligible 
Indian tribes for affordable 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 (IHBG Formula). A regulatory description of the IHBG Formula is 
located in subpart D of 24 CFR part 1000 (Sec. Sec.  1000.301-
1000.340). Under section 302 of NAHASDA, the allocation formula must be 
based on factors that reflect the need of Indian tribes for affordable 
housing activities. In implementing the need-based IHBG Formula, the 
negotiated rulemaking committee concluded that tribal need would most 
appropriately be measured by two components: Need and Formula Current 
Assisted Stock (FCAS). Generally, the amount of annual funding for an 
Indian tribe is the sum of the Need component (subject to a minimum 
funding amount authorized by Sec.  1000.328) and the FCAS component. 
Based on the amount of funding appropriated annually for the IHBG 
Program, HUD calculates the annual grant for each Indian tribe and 
provides this information to the Indian tribes. An Indian Housing Plan 
(IHP) for the Indian tribe is then submitted to HUD. If the IHP is 
found to be in compliance with statutory and regulatory requirements, 
the grant is made.

II. The IHBG Formula Negotiated Rulemaking Committee

    Section 1000.306 of the IHBG Program regulations provides that the 
IHBG Formula shall be reviewed within five years after issuance. On 
July 16, 2001 (66 FR 37098) and July 5, 2002 (67 FR 44787), HUD 
published notices in the Federal Register announcing HUD's intent to 
establish a negotiated rulemaking committee for the purposes of 
reviewing the regulations at 24 CFR part 1000, subpart D, and 
negotiating recommendations for a possible proposed rule modifying the 
IHBG Formula. These notices also solicited public comments on the 
proposed membership of the Committee, and explained how persons could 
be nominated for membership. On January 22, 2003 (68 FR 3112), HUD 
published an additional Federal Register notice, announcing the list of 
proposed members for the negotiated rulemaking committee and requesting 
additional public comment on the proposed membership.
    On April 8, 2003 (68 FR 17000), HUD published a notice in the 
Federal Register announcing the establishment of its IHBG Formula 
Negotiated Rulemaking Committee (Committee) and announcing the final 
list of Committee members. The Committee membership consisted of 24 
elected officers of tribal governments (or authorized designees of 
those tribal governments). The Committee membership reflected a 
balanced representation of Indian tribes, both geographically and based 
on size. In addition to the tribal members, there were two HUD 
representatives on the Committee.

[[Page 9491]]

    The first meeting of the Committee took place in April 2003 and 
continued to meet thereafter on approximately a monthly basis. The 
Committee met a total of seven times, with the final meeting being held 
in January 2004. The Committee agreed to operate based on consensus 
rulemaking and its approved charter and protocols. HUD committed to 
using, to the maximum extent feasible consistent with its legal 
obligations, all consensus decisions as the basis for the proposed 
rule. When an issue was raised for consensus, only those members 
objecting to the proposed change were asked to raise their hands. 
Silence indicated that the Committee member did not wish to object to 
the proposal. The Committee's premise was that existing regulations 
were sufficient if not amended by consensus of the full Committee.
    The Committee divided itself into two workgroups to analyze 
specified provisions of the IHBG Formula and to draft any new or 
revised regulatory language it believed was necessary. The workgroups 
were not authorized to reach any final or binding decisions but, 
rather, reported to the full Committee. One workgroup was responsible 
for analyzing the regulations for the Need component, while the other 
group reviewed the provisions regarding the FCAS component. The draft 
regulatory language developed by the workgroups was then brought before 
the full Committee for review, amendment, and approval. Also, some 
issues discussed by the workgroups, but not agreed upon, were also 
raised by the Committee members for consideration by the full 
Committee. In some cases, ideas were brought forward for Committee 
consideration without accompanying draft language and consensus was 
reached with the understanding that a drafting workgroup would 
subsequently craft the language to effect the desired change. The 
meetings were divided between workgroup sessions, at which regulatory 
language and proposals were developed. Full Committee sessions were 
held to discuss the draft regulations produced by the workgroups. It 
was the Committee's policy to provide for public participation in the 
rulemaking process. All of the Committee sessions were announced in the 
Federal Register and were open to the public, and interested members of 
the public actively participated in the workgroup sessions.
    Subsequent to the conclusion of the Committee meetings, two 
additional workgroups were established. One workgroup was assigned the 
task of reviewing the approved regulatory language for content, format, 
style, and consistent use of terminology. The second workgroup was 
charged with developing the preamble to this proposed rule. The 
membership of both workgroups consisted of HUD and tribal 
representatives.

III. This Proposed Rule

    The Committee undertook a comprehensive review of the IHBG Formula, 
and thoroughly analyzed all aspects of both the Need and FCAS 
components. The Committee identified certain areas of the IHBG Formula 
that required clarification, were outdated, or were not operating as 
intended by the original negotiated rulemaking committee. This proposed 
rule reflects the consensus decisions reached by the Committee during 
the negotiated rulemaking process on the best way to address these 
issues. The following section of this preamble provides a summary of 
the recommended changes to the IHBG Formula by this proposed rule. HUD 
welcomes public comment on the proposed regulatory changes. The 
Committee will consider all comments in the development of the final 
rule.

A. Definition of Formula Area

    This proposed rule would revise the definition of the term 
``Formula Area'' located in Sec.  1000.302. Section 1000.302 contains 
the definitions that apply to the IHBG Formula. Several of the proposed 
changes are editorial and non-substantive, and are designed to clarify 
the current definition. Other proposed revisions are more substantive 
and expand upon current regulatory language. Specifically, the proposed 
rule would define the term ``Formula Area'' to mean:
    1. Reservations for federally recognized Indian tribes, as defined 
by the U.S. Census;
    2. Trust lands;
    3. Department of the Interior Near-Reservation Service Area;
    4. Former Indian Reservation Areas in Oklahoma Indian Areas, as 
defined by the U.S. Census as Oklahoma Tribal Statistical Areas 
(OTSAs);
    5. Congressionally Mandated Service Areas;
    6. State Tribal Areas as defined by the U.S. Census as State 
Designated American Indian Statistical Areas (SDAISAs);
    7. Tribal Designated Statistical Areas (TDSAs);
    8. California Tribal Jurisdictional Areas established or 
reestablished by federal court judgment; and
    9. Alaska formula areas (which are further defined by the proposed 
rule, as described in section II.B. of this preamble below).
    The proposed rule would contain a ``grandfather'' provision that 
ensures Indian tribes will continue to be assigned their current 
Formula Area despite the proposed changes to the definition. The 
``grandfather'' provision would apply to Indian tribes assigned a 
Formula Area that is not included within the geographies listed above. 
Specifically, the proposed rule provides that such a federally 
recognized Indian tribe will continue to be assigned the Formula Area 
geography it was assigned in Fiscal Year 2003, provided that the Indian 
tribe continues to provide an appropriate level of housing services 
within the Formula Area. HUD will monitor the level of housing 
assistance provided by the Indian tribe using the new proposed 
definition of the term ``substantial housing services'' as a guideline 
but not a requirement (see section III.E. of this preamble for more 
information regarding the definition of ``substantial housing 
services'').
    To reflect special circumstances within OTSAs, the rule would 
authorize a challenge by such tribes to the ``grandfathering'' of 
current Formula Areas. This language was added to reflect possible 
challenges regarding Formula Areas in Oklahoma. The grandfather 
provision, however, would not apply in Alaska.

B. Definition of Alaska Formula Area

    Given the unique circumstances of Indian tribes in Alaska, the 
proposed rule would establish a separate provision clarifying how the 
Formula Area for these tribes will be determined. The proposed rule 
provides that Alaska needs data shall be credited, as currently 
described in Sec.  1000.327 of the IHBG Program regulations, to the 
Alaska Native Village (ANV), the regional Indian tribe, or to the 
regional corporation established pursuant to the Alaska Native Claims 
Settlement Act (33 U.S.C. 1601 et seq.) (ANCSA).
    The Formula Area of the ANV shall be the geographic area of the 
village or that area delineated by the TDSA established for the ANV for 
purposes of the 1990 U.S. Census or the Alaska Native Village 
Statistical Area (ANVSA) established for the ANV. To the extent the 
area encompassed by such designation may substantially exceed the 
actual geographic area of the village, such designation is subject to 
challenge pursuant to revised Sec.  1000.336 (see section III.L. of 
this preamble below). If the ANVSA or the TDSA is determined pursuant 
to such challenge to substantially exceed the actual area of the 
village, then the geographic formula area of the ANV for purposes of 
Sec.  1000.327 shall be such U.S. Census

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designation as most closely approximates the actual geographic area of 
the village. The Formula Area of the regional corporation shall be the 
area established for the corporation by the ANCSA.
    An Indian tribe may seek to expand its Alaska Formula Area within 
its ANCSA region pursuant to the proposed new procedures described in 
section III.D. of this preamble. Formula Area added in this way shall 
be treated as overlapping pursuant to Sec.  1000.326 of the IHBG 
Program regulations, unless the Indian tribe's members in the expanded 
area is less than 50 percent of the American Indian/Alaska Native 
(AIAN) population. In cases where the Indian tribe is not treated as 
overlapping, the tribe shall be credited with population and housing 
data only for its own tribal members resident within the new or added 
area. All other population and housing data for the area shall remain 
with the Indian tribe or tribes previously credited with such data.

C. Population Cap in Determining Formula Area

    The proposed rule would retain the existing ``cap'' on the 
population data that will be attributed to an Indian tribe within its 
Formula Area. The Committee determined that the cap was necessary to 
maintain fairness for all Indian tribes. In general, population data 
may not exceed twice an Indian tribe's enrolled population. However, 
the proposed rule continues to provide that an Indian tribe may exceed 
this cap under certain specified circumstances, and makes the following 
clarification to these requirements.
    The clarification concerns state-recognized Indian tribes. The 
proposed rule provides that, for state-recognized tribes, the 
population data and formula allocation shall be limited to tribal 
enrollment figures as determined under enrollment criteria in effect in 
1996. This provision is derived from the definition of state-recognized 
tribes in section 4(12)(C)(ii) of title I of NAHASDA, which states that 
the allocation for a state-recognized Indian tribe shall be determined 
based on tribal membership eligibility criteria in existence on the 
date of enactment of NAHASDA (October 26, 1996). The clarification is 
intended to ensure that state-recognized Indian tribes will not be 
credited for any new members who do not meet the enrollment criteria 
that was in place in 1996. However, it does not prohibit a state-
recognized Indian tribe from being credited with new members who meet 
the enrollment criteria in place in 1996 and it does not freeze or 
grandfather a state-recognized Indian tribe's population data or 
formula allocation at 1996 levels.

D. Expansion and Re-Definition of Formula Areas

    The proposed rule would establish new procedures governing the 
expansion or re-definition of an Indian tribe's Formula Area. The 
proposed requirements are designed to ensure that an Indian tribe 
seeking to include additional geography within its approved Formula 
Area has the authority to provide housing services within the new 
geography, and will serve the housing needs of Native Americans within 
the expanded Formula Area.
    The Indian tribe must submit proof that it either: (1) Could 
exercise court jurisdiction within the new geography; or (2) is 
providing substantial housing services and will continue to expend or 
obligate funds for substantial housing services within the new 
geographic area. Further, where applicable, the Indian tribe must 
submit proof that it has agreed to provide housing services pursuant to 
a Memorandum of Agreement (MOA) with the tribal and public governing 
entity or entities of the area, or has attempted to establish such an 
MOA in good faith. The geographic area into which the Indian tribe may 
expand shall be the smallest U.S. Census unit or units that encompass 
the physical location of the substantial housing services that have 
been provided by the Indian tribe.
    HUD will make a preliminary decision upon receipt of the tribal 
request for recognition of an expanded or re-defined Formula Area. HUD 
shall notify all potentially affected Indian tribes of the basis for 
its preliminary determination by certified mail and provide the Indian 
tribes with the opportunity to comment for a period of not less than 90 
days. After consideration of the comments, HUD shall announce its final 
determination through Federal Register notice.

E. Definition of ``Substantial Housing Services''

    As noted above in this preamble, this proposed rule would establish 
a new definition of the term ``substantial housing services'' that 
would be used in determining whether an Indian tribe may expand or re-
define its Formula Area (see section II.D. of this preamble). The new 
definition would clarify these provisions of the IHBG Formula and help 
to ensure consistent administration of these program requirements.
    In the case of the expansion or redefinition of the Formula Area, 
the term ``substantial housing services'' would mean affordable housing 
activities funded from any source provided to AIAN households with 
incomes 80 percent of the median income as defined in NAHASDA (25 
U.S.C. 4103(14)) or lower, equivalent to 100 percent or more of the 
increase in the IHBG formula allocation that the Indian tribe would 
receive as a result of adding the proposed geography to its Formula 
Area. Alternatively, the term ``substantial housing services'' would 
mean affordable housing activities funded with IHBG funds provided to 
AIAN households with incomes 80 percent of the median income as defined 
in NAHASDA (25 U.S.C. 4103(14)) or lower, equivalent to 51 percent or 
more of the Indian tribe's current total IHBG grant, and either: (1) 51 
percent or more of the Indian tribe's official enrollment resides 
within the geographic area; or (2) the Indian tribe's official 
enrollment constitutes 51 percent or more of the total AIAN persons 
within the geography.
    HUD shall require that the Indian tribe annually provide written 
verification, on a form approved by HUD, that the affordable housing 
activities it is providing meet the proposed new definition of 
substantial housing services.

F. Use of U.S. Census Data for Determining Tribal Membership in 
Overlapping Formula Areas

    The regulation at Sec.  1000.326 specifies how IHBG funds will be 
allocated where the Formula Area of one or more tribes overlap. Among 
other factors, the allocation will be based upon the Indian tribe's 
proportional share of the population in the geographic area. Tribal 
membership in the geographic area (not including dually enrolled tribal 
members) will be based on data that all Indian tribes involved agree to 
use. The current regulation lists several suggested data sources, 
including tribal enrollment lists, Indian Health Service User Data, and 
Bureau of Indian Affairs data. This list is not exclusive, and the data 
used for this purpose has sometimes included U.S. Census data. For 
purposes of clarity, the proposed rule would expand the list of 
suggested data sources to explicitly include data from the U.S. Census.

G. Required Use of Formula Response Form for Reporting Changes to FCAS

    The proposed rule would add a new Sec.  1000.315 clarifying that 
the Formula Response Form is the only mechanism a recipient may use to 
report changes to the FCAS. This is the existing practice under the 
IHBG Program, and

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codification of this policy will clarify that a recipient must use the 
Formula Response Form to report any changes to information related to 
the IHBG Formula.
    Further, the proposed rule would add a new Sec.  1000.319 that 
specifies what happens if a recipient misreports or fails to correct 
FCAS information on the Formula Response Form. Proposed Sec.  1000.319 
provides that if a recipient receives an overpayment of funds because 
it failed to report changes on the Formula Response Form in a timely 
manner, the recipient is required to repay the funds within five fiscal 
years. HUD shall subsequently distribute the funds to all Indian tribes 
in accordance with the next IHBG Formula allocation.
    New Sec.  1000.319 would also cover the issue of back funding for 
FCAS units that a recipient failed to report on the Formula Response 
Form in a timely manner. The proposed rule specifies that if a 
recipient subsequently seeks credit for those unreported units, the 
recipient will not be provided back funding for such units. HUD shall 
have three years from the date a Formula Response Form is sent out to 
take action against any recipient that fails to correct or make 
appropriate changes on that Formula Response Form.
    The language of proposed new Sec. Sec.  1000.315 and 1000.319 was 
adopted by the Committee based on HUD's agreement to provide back 
funding for any undercount of units that occurred and was reported or 
challenged prior to October 30, 2003. It was further agreed by the 
Committee that such back funding would be provided only after 
publication of a final rule adopting the policies contained in proposed 
Sec. Sec.  1000.315 and 1000.319.

H. Calculating Operating Subsidy Component of FCAS

    The proposed rule would make a minor, non-substantive modification 
to Sec.  1000.316(a)(1) for purposes of clarity. The current language 
of the regulation provides that the first of the three variables 
comprising the operating subsidy component of FCAS is ``the number of 
low-rent FCAS units multiplied by the FY 1996 national per-unit subsidy 
(adjusted to full funding level) multiplied by an adjustment factor for 
inflation.'' The proposed rule would simplify this provision by 
establishing a separate definition of the term ``national per unit 
subsidy'' in Sec.  1000.302, which contains the definitions applicable 
to the IHBG Program. Under the new definition, the term ``national per 
unit subsidy'' would be defined to mean the Fiscal Year 1996 national 
per unit subsidy (adjusted to full funding level) multiplied by an 
adjustment factor for inflation. Accordingly, Sec.  1000.316(a)(1) 
would then be streamlined to provide that the operating subsidy 
component of FCAS is ``the number of low-rent FCAS units multiplied by 
the national per-unit subsidy.''

I. Calculating the FCAS Modernization Allocation for Indian Tribes That 
Owned or Operated Less Than 250 Public Housing Units Under the United 
States Housing Act of 1937

    This proposed rule would implement a statutory amendment to NAHASDA 
made by the Omnibus Indian Advancement Act (Pub. L. 106-568, approved 
December 27, 2000) (Omnibus Act). Section 1003(g) of the Omnibus Act 
added a new subsection 302(d)(1)(B) to NAHASDA regarding operating and 
modernization funding for Indian tribes with Indian Housing Authorities 
(IHAs) that owned or operated fewer than 250 units developed under the 
United States Housing Act of 1937 (42 U.S.C. 1437 et seq.) (1937 Act). 
Specifically, section 302(d)(1)(B) provides that in any fiscal year in 
which the total amount made available under the IHBG Program is equal 
to or greater than the amount made available in Fiscal Year 1996 for 
the operation and modernization of housing units developed under the 
1937 Act, the modernization allocation provided to Indian tribes with 
IHAs that owned or operated fewer than 250 units shall equal the 
average annual funding provided to the Indian tribe under section 14 of 
the 1937 Act (other than funds provided for emergency assistance) for 
Fiscal Years 1992 through 1997. Section 14 of the 1937 Act, which has 
been repealed, formerly contained the requirements for public housing 
modernization.
    The proposed rule would implement this statutory provision by 
revising Sec.  1000.316(b), which concerns calculation of the 
modernization allocation of the FCAS component of the IHBG Formula. The 
substance of existing paragraph (b) would be re-designated as paragraph 
(b)(1), and would concern the calculation of the FCAS modernization 
allocation for Indian tribes with IHAs that owned or operated 250 or 
more public housing units on October 1, 1997. The modernization 
allocation for these Indian tribes will continue to equal the number of 
Low Rent, Mutual Help, and Turnkey III FCAS units multiplied by the 
national per unit amount of allocation for Fiscal Year 1996 
modernization multiplied by an adjustment factor for inflation.
    A new Sec.  1000.316(b)(2) would be added to address section 
302(d)(1)(B) of NAHASDA. New paragraph (b)(2) would provide that the 
FCAS modernization allocation for Indian tribes with an IHA that owned 
or operated fewer than 250 public housing units on October 1, 1997, 
shall equal the average amount of funds received under the assistance 
program authorized by section 14 of the 1937 Act (not including funds 
provided as emergency assistance) for Fiscal Years 1992 through 1997.
    This proposed rule would also make a conforming change to Sec.  
1000.340, which concerns the funding of an Indian tribe that is 
allocated less funding under the IHBG Formula than it received in 
Fiscal Year 1996 for operating subsidy and modernization. Specifically, 
the proposed rule would designate the existing substance of Sec.  
1000.340 as paragraph (b) and add a new paragraph (a) that addresses 
the effect of the amendment to section 302(d) of NAHASDA.
    New Sec.  1000.340(a) provides that if an Indian tribe is allocated 
less funding under the modernization allocation of the IHBG Formula 
than the number of Low Rent, Mutual Help, and Turnkey III FCAS units 
multiplied by the national per unit amount of allocation for Fiscal 
Year 1996 modernization multiplied by an adjustment factor for 
inflation, its modernization allocation will be increased to that 
amount. The remaining grants would be adjusted to keep the allocation 
within available appropriations. The Committee determined that the 
change was required to ensure that all Indian tribes are treated 
equitably, and to maintain fairness in the allocation of IHBG funds.

J. Small Programs/Minimum Funding

    The proposed rule would significantly revise the minimum funding 
provisions of Sec.  1000.328. First, the proposed rule would remove the 
current provisions regarding the minimum IHBG Formula Need allocation 
for an Indian tribe in its first year of participation in the IHBG 
Program. Currently, the regulation provides for a minimum allocation of 
$50,000 for an Indian tribe in its first program year. The proposed 
change to Sec.  1000.328 would treat all Indian tribes equally in 
setting a minimum amount of funding, regardless of their length of 
participation in the IHBG Program.
    The proposed rule would also revise the minimum formula allocation 
an Indian tribe will receive under the Need component of the IHBG 
Formula after its first year of participation in the program. The 
regulation currently in effect provides that the minimum

[[Page 9494]]

amount an Indian tribe will receive under the Need component after its 
first year of participation in the program is $25,000. The proposed 
rule would replace this dollar amount with a percentage of the 
available fiscal year appropriations (after set asides). Specifically, 
under the proposed rule, the minimum allocation in any fiscal year to 
an Indian tribe under the Need component shall equal 0.007826% of the 
available appropriations for that fiscal year after set asides. The 
Committee chose this percentage because, if the provision were 
effective for Fiscal Year 2004, the minimum funding amount under the 
proposed rule would equal approximately $50,000. The Committee wished 
to set a percentage that reflected a minimum of approximately $50,000 
based on current IHBG appropriations.
    The use of a percentage rather than a fixed dollar amount will help 
to ensure that Indian tribes receiving minimum funding will benefit 
proportionally with other Indian tribes from any increases in 
Congressional appropriations over the coming years. Conversely, the use 
of a percentage will also ensure that any reductions in appropriations 
are shared on a proportional basis among all Indian tribes.
    The proposed rule would also establish new eligibility requirements 
for minimum funding. The Indian tribe must receive less than $200,000 
under the FCAS component for the fiscal year, and must demonstrate the 
presence of any households at or below 80 percent of median income. 
These eligibility requirements are designed to ensure that the minimum 
funding provisions benefit Indian tribes that would otherwise be unable 
to provide even minimal housing services, and that have a demonstrable 
need for such services.

K. Adjustment of Need Variables Using Census Birth and Death Data

    The proposed rule would revise Sec.  1000.330, which describes the 
data sources used for the Need component, to codify existing procedures 
regarding the annual adjustment of these data to reflect birth and 
death rates. Specifically, new Sec.  1000.330(b) would specify that the 
data for the Need variables shall be adjusted annually beginning the 
year after the need data is collected, using Indian Health Service 
projections based upon birth and death rate data as provided by the 
National Center for Health Statistics.

L. Data Challenges and Appeal of HUD Formula Determinations

    The proposed rule would clarify and elaborate upon existing Sec.  
1000.336, which describes the procedures that an Indian tribe, tribally 
designated housing entities (TDHE), and HUD may use to challenge data. 
As revised by this proposed rule, Sec.  1000.336 would continue to 
authorize data challenges, but also provide for appeal of certain HUD 
formula determinations. Specifically, Indian tribes and TDHEs would be 
authorized to appeal formula determinations regarding, among others: 
(1) U.S. Census data; (2) tribal enrollment; (3) Formula Area; (4) 
FCAS; (5) Total Development Cost (TDC); (6) Fair Market Rents (FMRs); 
and (7) Indian Health Service projections based upon birth and death 
rate data provided by the National Center for Health Statistics. An 
Indian tribe, however, would not be permitted to challenge data or HUD 
formula determinations regarding Allowable Expense Level (AEL) and the 
inflation factor used to adjust AEL. As currently authorized for data 
challenges, the proposed rule would provide that the appeal of HUD 
formula determinations is an allowable cost for IHBG funds.
    The proposed rule would also clarify that data used to challenge 
U.S. Census data must meet the requirements described in Sec.  
1000.330(a). Specifically, the data must be collected in a uniform 
manner that can be confirmed and verified for all AIAN households and 
persons living in an identified area. Further, the proposed rule would 
revise the date by which the data challenge must be submitted to HUD in 
order for a U.S. Census challenge to be considered for the upcoming 
fiscal year allocation. The current regulation establishes a June 15 
deadline date. This proposed rule would require that the documentation 
be submitted by no later than March 15. The Committee decided to 
shorten the deadline after consideration of the time and resources 
required by HUD staff to process challenge requests in a timely manner 
and without delay to the calculation of formula allocations for all 
Indian tribes.
    The proposed rule would continue to provide that HUD shall respond 
to all challenges or appeals not later than 45 days after receipt and 
either approve or deny the validity of such data or challenge to a 
formula determination. The proposed rule would clarify that HUD shall 
provide the Indian tribe with the reasons for its determination in 
writing. The proposed rule would continue to provide that in the event 
HUD challenges the validity of the submitted data, the Indian tribe or 
TDHE and HUD shall attempt in good faith to resolve any discrepancies 
so that such data may be included in the formula allocation. The 
proposed rule would also clarify the steps that HUD and Indian tribes 
must follow should they be unable to reach resolution on these issues. 
Specifically, should the Indian tribe or TDHE and HUD be unable to 
resolve any discrepancy within 30 calendar days of receipt of HUD's 
denial, the Indian tribe or TDHE may request reconsideration of HUD's 
denial in writing. The request shall set forth justification for 
reconsideration. Within 20 calendar days of receiving the request, HUD 
shall reconsider the Indian tribe or TDHE's submission and either 
affirm or reverse its initial decision in writing, setting forth HUD's 
reasons for the decision.
    If the Indian tribe or TDHE prevails, an adjustment to the Indian 
tribe's or TDHE's subsequent allocation for the subsequent year shall 
be made retroactive to include only the disputed fiscal year(s). If HUD 
prevails, it shall issue a written decision denying the Indian tribe or 
TDHE's petition for reconsideration, which shall constitute final 
agency action.
    In the event HUD questions that the data contained in the formula 
does not accurately represent the Indian tribe's need, HUD shall 
request the Indian tribe to submit supporting documentation to justify 
the data and provide a commitment to serve the population indicated in 
the geographic area.

M. Review of IHBG Formula Within Five Years

    Section 1000.306 provides that the IHBG Formula shall be reviewed 
within five years after promulgation to determine whether changes are 
required. The Committee has agreed to interpret this provision to mean 
that the IHBG Formula regulations will again be reviewed within five 
years following the effective date of the final rule implementing this 
proposed rule. For purposes of clarity, and consistent with this 
consensus decision, the proposed rule would revise Sec.  1000.306 to 
state that the IHBG Formula regulations will be reviewed within five 
years following the effective date of the final rule.

IV. Nonconsensus Items; Other Issues for Consideration

    In addition to the proposed regulatory changes described above, the 
Committee considered other issues that, although not resulting in 
proposed revisions to the IHBG Formula, it wishes to bring to the 
attention of the public. The Committee considered a variety of 
proposals for suggested changes during the course of the negotiations 
for which consensus was not achieved.
    In some cases, the Committee considered possible changes for which

[[Page 9495]]

no draft regulatory language was developed and, therefore, consensus 
could not be reached. These proposals included: (1) The revised 
weighting of the Need component to better reflect the need of low-
income families; (2) the inclusion of separate variables under the Need 
component to reflect overcrowding and lack of plumbing (which are 
currently reflected by a single formula variable under the Need 
component); (3) retaining the Current Assisted Stock portion of the 
IHBG Formula without change; (4) revising the determination of Total 
Development Cost; and (5) reviewing the eligibility of state-recognized 
Indian tribes to receive funding under NAHASDA.
    The Committee also considered six draft rule changes upon which 
consensus could not be reached. The following discussion summarizes 
these proposals.

A. Definition of Formula Median Income

    The Committee considered removing the definition of ``formula 
median income'' used in calculating the Need component of the IHBG 
Formula and, in its place, using the definition of ``median income'' 
provided under section 4 of NAHASDA. Under the NAHASDA definition, 
median income equals the greater of the median income for the Indian 
area as determined by the Secretary of HUD, or the median income for 
the United States. The IHBG Formula regulations use the term ``formula 
median income,'' which is determined in accordance with section 567 of 
the Housing and Community Development Act of 1987 (42 U.S.C. 1437a 
note). Section 567 provides that median income is the higher of the 
median income of the county in which the area is located or the median 
income of the entire nonmetropolitan area of the state.
    The Committee members advocating this change took the position that 
the formula allocation should be based in part on the statutory 
definition of median income contained in NAHASDA. These Committee 
members expressed concern that the regulatory definition unfairly 
results in some Indian tribes not receiving IHBG funding for low-income 
Indian families who must be served by the Indian tribe. Other Committee 
members, however, noted that the revision would result in a shift in 
funding and authorize the use of a national income standard not 
reflective of local conditions.
    There was one objection to the proposed removal of formula median 
income. Later, at the conclusion of negotiations of all issues, but 
prior to adjournment of the Committee session, the member disagreeing 
with the change offered to withdraw the objection if the Committee 
wished to revisit the item. There were 10 objections to revisiting the 
proposal and, therefore, consensus was not reached on this change.

B. Elimination of Section 8 Inflation Adjustment Factor in Calculating 
FCAS

    Under Sec.  1000.316, the FCAS component considers the number of 
Section 8 units operated by the Indian tribe as of September 30, 1997, 
multiplied by the FY1996 national per unit subsidy adjusted for 
inflation. The Committee considered various proposals to remove the 
inflation adjustment factor for Section 8 units. One proposal would 
have simply removed the inflation factor. A compromise proposal offered 
by the same Committee member would also have removed the inflation 
factor, but provided that the number of Section 8 units would be 
adjusted by the FY2003 national per unit subsidy. The Committee members 
advocating this change stated that the adjustment factor results in the 
diversion of scarce IHBG funds and encourages the retention of Section 
8 units at the expense of other affordable housing activities. Other 
Committee members stated that the Section 8 units were a valuable 
housing resource in their communities, and that the inflation factor 
was necessary to ensure that families could continue to afford residing 
in these units.
    There were seven objections to the proposed removal of the Section 
8 inflation factor in the calculation of FCAS and, therefore, consensus 
was not reached.

C. Definition of Substantial Noncompliance

    Section 1000.534 of the IHBG Program regulations describes those 
tribal actions that constitute substantial noncompliance with IHBG 
Program requirements. As explained in Sec.  1000.538, HUD may take 
certain actions against an Indian tribe that has failed to comply 
substantially with the IHBG Program requirements, but only after 
reasonable notice and opportunity for a hearing conducted in accordance 
with 24 CFR part 24. The Committee considered expanding the actions 
deemed to constitute substantial noncompliance and, therefore, entitle 
the Indian tribe to a formal hearing prior to any reduction or 
adjustment of its IHBG grant. Specifically, the Committee considered 
proposed language providing that an Indian tribe is entitled to a 
formal hearing if HUD takes any action or makes any determination that 
would reduce, withdraw, or adjust an Indian tribe's grant by an amount 
of at least $50,000 or 20 percent of the Indian tribe's grant for the 
fiscal year.
    The Committee members advocating this change stated that HUD 
determinations that might result in a reduction of the Indian tribe's 
grant in an amount exceeding the proposed thresholds should, in the 
interest of fairness, be considered ``substantial'' and entitle the 
Indian tribe with the opportunity to a hearing. A Committee member 
noted that the current procedures are fair and work effectively to 
safeguard the interests of Indian tribes and the federal government for 
all Indian tribes. This member also expressed concerns that the 
proposed regulatory change would result in a large increase in hearing 
requests, thereby creating undue administrative burden and delaying 
formula calculations.
    There were two objections to the proposed expansion of substantial 
noncompliance and therefore consensus was not reached on this proposal.

D. Replacement of Allowable Expense Level (AEL)

    The IHBG Formula currently uses an adjustment factor known as the 
Allowable Expense Level (AEL), which serves as a substitute measurement 
of geographic and other differences in the monthly per-unit operating 
costs incurred by an Indian tribe to operate Current Assisted Stock. 
The individual AEL determinations for each Indian tribe vary, sometimes 
greatly, across the country. Pursuant to Sec.  1000.320, either the 
relative difference between local area AEL and the national weighted 
average for AEL, or the fair market rent factor, is used to allocate 
operating subsidies among Indian tribes under the CAS component of the 
IHBG Formula. The use of the AEL and the existing AEL levels are a 
carry-over from the Performance Funding System under which HUD, prior 
to enactment of NAHASDA, provided operating subsidy to IHAs. The fair 
market rent factors have a challenge or appeal process, but there is no 
such right or procedure for the AELs.
    Some members of the Committee expressed dissatisfaction with the 
AEL, stating that it is not reflective of the true costs of operating 
affordable housing units and that individual AEL levels were often 
inaccurately calculated. Some other Committee members felt that 
generally use of the AEL is an acceptable method for allocating IHBG 
operating funds among the Indian tribes but that individual AEL 
determinations should be subject to challenge by

[[Page 9496]]

individual Indian tribes. The Committee considered a consensus proposal 
to retain the AEL but also permit individual tribal challenges to AEL 
determinations. However, other Committee members noted that the 
revision would result in a shift in funding. There were seven 
objections to the proposal, resulting in nonconsensus. Accordingly, 
this rule does not propose any changes to the AEL.
    During Committee deliberations, several members, including HUD, 
expressed a desire to replace the AEL with a more current, accurate, 
asset-based measure of the costs to operate well-run housing in tribal 
areas. It was acknowledged, moreover, that at this time the data and 
methodologies necessary to implement such a system have not been 
developed. HUD has begun to undertake a comprehensive study of well-run 
tribal housing. HUD will consult with, and seek the active 
participation of, Indian tribes, TDHEs, and other Native American and 
Alaska Native organizations in the development and implementation of 
the cost study. HUD advised the Committee that it will make its best 
efforts to develop an acceptable replacement for the AEL no later than 
the next five-year review of the IHBG Formula under Sec.  1000.306, 
consistent with any applicable negotiated rulemaking requirements.

E. Alternative Data Sources

    Section 1000.330 provides that the data sources for the Need 
component shall be available data that is collected in a uniform manner 
that can be confirmed and verified for all AIAN households. Section 
1000.330 further provides that initially the data used will be U.S. 
Census data.
    Several Committee members expressed concerns about the use of U.S. 
Census Data, stating that it does not accurately reflect the population 
of tribal areas. These members proposed a regulatory change that would 
have permitted an Indian tribe to elect the use of other data sources 
in calculation of its Need component. These data sources would have 
included a tribal census, Indian Health Service data, and tribal 
enrollment data. Other Committee members, while acknowledging 
imperfections in the census data, stated that the U.S. Census is the 
only data source that satisfies the criteria contained in Sec.  
1000.330, which requires that the data be verifiable for all Indian 
tribes and collected in a uniform manner. These members were also 
concerned that opening formula calculations to a variety of data 
sources, rather than a single source agreed upon by all Indian tribes, 
would jeopardize the speed, accuracy, and fairness of IHBG Formula 
determinations.
    There were nine objections to the use of alternative data sources 
other than the U.S. Census and, therefore, consensus was not reached on 
the proposal.

F. Use of Multi-Race U.S. Census Data

    In calculating the Need component, pursuant to Sec.  1000.330, HUD 
uses U.S. Census population data. When Sec.  1000.330 was adopted by 
the original negotiated rulemaking committee, the U.S. Census 
population data at that time reflected only those persons who 
identified solely as AIAN. However, the 2000 U.S. Census reported for 
the first time both those persons who identify themselves solely as 
AIAN and those who also identify with another race. HUD's current 
calculation of the Need component incorporates all persons who identify 
as AIAN, without regard to whether they also identify as another race. 
Proponents of using this data stated that the use of single-race data 
reflects the best available information and would exclude some persons 
who identified as multi-race and are eligible to be served under 
NAHASDA. These members stressed the importance of allowing tribal 
members, as determined by individual tribal membership criteria, to be 
counted and served. Other Committee members, however, expressed 
objections to the use of this multi-race data, stating that the purpose 
of NAHASDA to assist Native Americans would be better served by 
limiting the population data to those persons designating themselves as 
being solely AIAN. These Committee members expressed concern that HUD, 
not the individual Indian tribes, had determined whether to use multi-
race data in the calculation of the Need component. The Committee 
considered a compromise proposal that would have provided for the 
calculation of the Need component based on the average of the number of 
individuals designating themselves solely as AIAN and the number of 
persons also designating themselves as belonging to other racial 
categories. There were ten objections to the proposal and consensus was 
not reached to amend HUD's current practice to use multi-race AIAN data 
for formula purposes.

G. Calculation of the Need Component Housing Shortage Variable

    Section 1000.324(c) provides that in calculating the Need component 
housing shortage variable, HUD shall consider, among other factors, the 
number of ``units developed under NAHASDA.'' There is currently no 
regulatory provision defining which units are considered to have been 
developed under NAHASDA. Accordingly, HUD has not taken these ``NAHASDA 
units'' into account when calculating the housing shortage variable.
    The Committee attempted unsuccessfully to develop a definition of 
NAHASDA units. The Committee then considered a proposal to remove the 
reference to these units from Sec.  1000.324(c). The members advocating 
the proposal indicated that the change was necessary for purposes of 
clarity. Other Committee members, however, noted that a definition 
could be established at a later date, and that Indian tribes should be 
afforded the opportunity to develop, and receive funding for, NAHASDA 
units. There were five objections to the proposed removal of the 
reference to NAHASDA units and, therefore, consensus was not reached on 
this issue.

V. Findings and Certifications

Regulatory Planning and Review

    The Office of Management and Budget (OMB) reviewed this rule under 
Executive Order 12866 (entitled ``Regulatory Planning and Review''). 
OMB determined that this rule is a ``significant regulatory action'' as 
defined in section 3(f) of the Order (although not an economically 
significant action, as provided under section 3(f)(1) of the Order). 
Any changes made to the rule subsequent to its submission to OMB are 
identified in the docket file, which is available for public inspection 
in the Regulations Division, Room 10276, Office of General Counsel, 
Department of Housing and Urban Development, 451 Seventh Street, SW., 
Washington, DC 20410-0500.

Paperwork Reduction Act

    The information collection requirements contained in this proposed 
rule have been submitted to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In 
accordance with the Paperwork Reduction Act, an agency may not conduct 
or sponsor, and a person is not required to respond to, a collection of 
information unless the collection displays a currently valid OMB 
control number.
    The burden of the information collections in this proposed rule is 
estimated as follows:
    Reporting and Recordkeeping Burden:

[[Page 9497]]



----------------------------------------------------------------------------------------------------------------
                                                                                   Estimated
                                                                    Number of     average time      Estimated
                  Section reference                    Number of    responses         for         annual burden
                                                        parties        per      requirement (in     (in hours)
                                                                    respondent       hours)
----------------------------------------------------------------------------------------------------------------
Sec.   1000.315.....................................          579            1              .60              347
Sec.   1000.336.....................................           15            1              170            2,550
                                                     --------------
    Total burden....................................  ...........  ...........  ...............            2,897
----------------------------------------------------------------------------------------------------------------

    In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments 
from members of the public and affected agencies concerning this 
collection of information to:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond; including through the use of appropriate automated 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.
    Interested persons are invited to submit comments regarding the 
information collection requirements in this rule. Under the provisions 
of 5 CFR part 1320, OMB is required to make a decision concerning this 
collection of information between 30 and 60 days after today's 
publication date. Therefore, a comment on the information collection 
requirements is best assured of having its full effect if OMB receives 
the comment within 30 days of today's publication. This time frame does 
not affect the deadline for comments to the agency on the interim rule, 
however. Comments must refer to the proposal by name and docket number 
(FR-4676) and must be sent to:

Mark Menchik, HUD Desk Officer, Office of Management and Budget, New 
Executive Office Building, Washington, DC 20503, Fax number: (202) 395-
6947, E-mail: [email protected]; and
Sherry Fobear-McKown, Reports Liaison Officer, Office of Public and 
Indian Housing, Department of Housing and Urban Development, 451 
Seventh Street, SW., Room 4116, Washington, DC 20410-5000.

Environmental Impact

    A Finding of No Significant Impact with respect to the environment 
has been made in accordance with HUD regulations at 24 CFR part 50, 
which implement section 102(2)(C) of the National Environmental Policy 
Act of 1969 (42 U.S.C. 4332(2)(C)). The Finding of No Significant 
Impact is available for public inspection between the hours of 8 a.m. 
and 5 p.m. weekdays in the Regulations Division, Office of General 
Counsel, Room 10276, Department of Housing and Urban Development, 451 
Seventh Street, SW., Washington, DC 20410-0500.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule would not impose substantive new requirements on 
Indian tribes. Rather, the proposed rule addresses those areas of the 
IHBG Formula that HUD and Indian tribal representatives determined 
require clarification, are outdated, or are not operating as intended. 
Moreover, HUD negotiated the amendments contained in this proposed rule 
with representatives of Indian tribes, and the proposed rule reflects 
the consensus decisions reached by HUD and its tribal negotiating 
partners on the best way to address the required changes to the IHBG 
Formula. The potential burden of the proposed regulatory changes on 
Indian tribes were considered and addressed as part of the negotiated 
rulemaking process. Accordingly, the undersigned certifies that this 
rule will not have a significant economic impact on a substantial 
number of small entities.
    Notwithstanding HUD's determination that this rule will not have a 
significant economic impact on a substantial number of small entities, 
HUD specifically invites comments regarding less burdensome 
alternatives to this rule that will meet HUD's objectives as described 
in this preamble.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1531-1538) establishes requirements for Federal agencies to 
assess the effects of their regulatory actions on State, local, and 
tribal governments and the private sector. This proposed rule does not 
impose any Federal mandate on State, local, or tribal government or the 
private sector within the meaning of UMRA.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number for the IHBG 
Program is 14.867.

List of Subjects in 24 CFR Parts 1000

    Aged, Grant programs--housing and community development, Grant 
programs--Indians, Individuals with disabilities, Low and moderate 
income housing, Public housing, Reporting and recordkeeping 
requirements.

    Accordingly, for reasons discussed above, HUD proposes to amend 24 
CFR part 1000 as follows:

PART 1000--NATIVE AMERICAN HOUSING ACTIVITIES

    1. The authority citation for 24 CFR part 1000 continues to read as 
follows:

    Authority: 25 U.S.C. 4101 et seq.; 42 U.S.C. 3535(d).

    2. In Sec.  1000.302, revise the definition of ``Formula Area'' and 
add, in alphabetical order, definitions of the terms ``National Per 
Unit Subsidy'' and ``Substantial Housing Services'' to read as follows:


Sec.  1000.302  What are the definitions applicable to the IHBG 
formula?

* * * * *
    Formula area. (1) Formula areas are:
    (i) Reservations for federally recognized Indian tribes, as defined 
by the U.S. Census;
    (ii) Trust lands;
    (iii) Department of the Interior Near-Reservation Service Area;
    (iv) Former Indian Reservation Areas in Oklahoma Indian Areas, as 
defined by the U.S. Census as Oklahoma Tribal Statistical Areas 
(OTSAs);
    (v) Congressionally Mandated Service Areas;

[[Page 9498]]

    (vi) State Tribal Areas as defined by the U.S. Census as State 
Designated American Indian Statistical Areas (SDAISAs);
    (vii) Tribal Designated Statistical Areas (TDSAs);
    (viii) California Tribal Jurisdictional Areas established or 
reestablished by Federal court judgment; and
    (ix) Alaska formula areas described in paragraph (4) of this 
definition.
    (2)(i) For a geographic area not identified in paragraph (1) of 
this definition, and for expansion or re-definition of a geographic 
area from the prior year, including those identified in paragraph (1) 
of this definition, the Indian tribe must submit, on a form agreed to 
by HUD, information about the geographic area it wishes to include in 
its Formula Area, including proof that the Indian tribe, where 
applicable, has agreed to provide housing services pursuant to a 
Memorandum of Agreement (MOA) with the tribal and public governing 
entity or entities of the area, or has attempted to establish such an 
MOA; and either:
    (A) Could exercise court jurisdiction, or
    (B) Is providing substantial housing services and will continue to 
expend or obligate funds for substantial housing services as reflected 
in the form agreed to by HUD for this purpose.
    (ii) Upon receiving a request for recognition of a geographic area 
not identified in paragraph (1) of this definition, HUD shall make a 
preliminary determination. HUD shall notify all potentially affected 
Indian tribes of the basis for its preliminary determination by 
certified mail and provide the Indian tribes with the opportunity to 
comment for a period of not less than 90 days. After consideration of 
the comments, HUD shall announce its final determination through 
Federal Register notice.
    (iii) No Indian tribe may expand or redefine its Formula Area 
without complying with the requirements of paragraphs (2)(i) and (ii) 
of this definition, notwithstanding any changes recognized by the U.S. 
Census Bureau.
    (iv) The geographic area into which an Indian tribe may expand 
under this paragraph (2) shall be the smallest U.S. Census unit or 
units encompassing the physical location where substantial housing 
services have been provided by the Indian tribe.
    (3) Subject to a challenge by an Indian tribe with a Formula Area 
described under paragraph (1)(iv) of this definition, any federally 
recognized Indian tribe assigned Formula Area geography in Fiscal Year 
2003 not identified in paragraphs (1) and (2) of this definition, shall 
continue to be assigned such Formula Area in subsequent fiscal years, 
provided that the Indian tribe continues to provide an appropriate 
level of housing services within the Formula Area as monitored by HUD 
using the definition of substantial housing services contained in this 
section as a guideline but not a requirement.
    (4) Notwithstanding paragraphs (1), (2), and (3) of this 
definition, Alaska needs data shall be credited as set forth in Sec.  
1000.327 to the Alaska Native Village (ANV), the regional Indian tribe, 
or to the regional corporation established pursuant to the Alaska 
Native Claims Settlement Act (33 U.S.C. 1601 et seq.) (ANCSA). For 
purposes of Sec.  1000.327 and this definition:
    (i) The formula area of the ANV shall be the geographic area of the 
village or that area delineated by the TDSA established for the ANV for 
purposes of the 1990 U.S. Census or the Alaska Native Village 
Statistical Area (ANVSA) established for the ANV. To the extent the 
area encompassed by such designation may substantially exceed the 
actual geographic area of the village, such designation is subject to 
challenge pursuant to Sec.  1000.336. If the ANVSA or the TDSA is 
determined pursuant to such challenge to substantially exceed the 
actual area of the village, then the geographic formula area of the ANV 
for purposes of Sec.  1000.327 shall be such U.S. Census designation as 
most closely approximates the actual geographic area of the village.
    (ii) The geographic formula area of the regional corporation shall 
be the area established for the corporation by the ANCSA.
    (iii) An Indian tribe may seek to expand its Alaska formula area 
within its ANCSA region pursuant to the procedures set out in paragraph 
(2) of this definition. Formula Area added in this way shall be treated 
as overlapping pursuant to Sec.  1000.326 unless the Indian tribe's 
members in the expanded area is less than 50 percent of the AIAN 
population. In cases where the Indian tribe is not treated as 
overlapping, the Indian tribe shall be credited with population and 
housing data only for its own tribal member residents within the new or 
added area. All other population and housing data for the area shall 
remain with the Indian tribe or tribes previously credited with such 
data.
    (5) In some cases the population data for an Indian tribe within 
its Formula Area is greater than its tribal enrollment. In general, to 
maintain fairness for all Indian tribes, the tribe's population data 
will not be allowed to exceed twice an Indian tribe's enrolled 
population. However, an Indian tribe subject to this cap may receive an 
allocation based on more than twice its total enrollment if it can show 
that it is providing housing assistance to substantially more non-
member Indians and Alaska Natives who are members of another federally 
recognized Indian tribe than it is to members. For state-recognized 
Indian tribes, the population data and formula allocation shall be 
limited to their tribal enrollment figures as determined under 
enrollment criteria in effect in 1996.
    (6) In cases where an Indian tribe is seeking to receive an 
allocation more than twice its total enrollment, the tribal enrollment 
multiplier will be determined by the total number of Indians and Alaska 
Natives to which the Indian tribe is providing housing assistance (on 
July 30 of the year before funding is sought) divided by the number of 
members to which the Indian tribe is providing housing assistance. For 
example, an Indian tribe which provides housing to 300 Indians and 
Alaska Natives, of which 100 are members, the Indian tribe would then 
be able to receive an allocation for up to three times its tribal 
enrollment if the Indian and Alaska Native population in the area is 
three or more times the tribal enrollment.
* * * * *
    National per unit subsidy is the Fiscal Year 1996 national per unit 
subsidy (adjusted to full funding level) multiplied by an adjustment 
factor for inflation.
* * * * *
    Substantial housing services are:
    (1) Affordable housing activities funded from any source provided 
to AIAN households with incomes 80 percent of the median income as 
defined in NAHASDA (25 U.S.C. 4103 (14)) or lower, equivalent to 100 
percent or more of the increase in the IHBG formula allocation that the 
Indian tribe would receive as a result of adding the proposed 
geography; or
    (2) Affordable housing activities funded with IHBG funds provided 
to AIAN households with incomes 80 percent of the median income as 
defined in NAHASDA (25 U.S.C. 4104(14)) or lower, equivalent to 51 
percent or more of the Indian tribe's current total IHBG grant; and 
either:
    (i) Fifty-one percent or more of the Indian tribe's official 
enrollment resides within the geographic area; or
    (ii) The Indian tribe's official enrollment constitutes 51 percent 
or more of the total AIAN persons within the geography.
    (3) HUD shall require that the Indian tribe annually provide 
written

[[Page 9499]]

verification, on a form approved by HUD, that the affordable housing 
activities it is providing meet the definition of substantial housing 
services.
* * * * *
    3. Revise Sec.  1000.306(b) to read as follows:


Sec.  1000.306  How can the IHBG Formula be modified?

* * * * *
    (b) The IHBG Formula shall be reviewed not later than [date that is 
five years from the effective date of final rule] to determine if 
subsidy is needed to operate and maintain NAHASDA units or any other 
changes are needed in respect to funding under the Formula Current 
Assisted Stock component of the formula.
* * * * *
    4. Add Sec.  1000.315 to read as follows:


Sec.  1000.315  Is a recipient required to report changes to the 
Formula Current Assisted Stock (FCAS) on the Formula Response Form?

    (a) A recipient shall report changes to information related to the 
IHBG formula on the Formula Response Form, including corrections to the 
number of Formula Current Assisted Stock (FCAS), during the time period 
required by HUD. This time period shall be not less than 60 days from 
the date of the HUD letter transmitting the form to the recipient.
    (b) The Formula Response Form is the only mechanism that a 
recipient shall use to report changes to number of FCAS.
    5. In Sec.  1000.316, revise paragraph (a)(1) and paragraph (b) to 
read as follows:


Sec.  1000.316  How is the Formula Current Assisted Stock (FCAS) 
Component developed?

* * * * *
    (a) * * *
    (1) The number of low-rent FCAS units multiplied by the national 
per-unit subsidy;
* * * * *
    (b) Modernization allocation. (1) For Indian tribes with an Indian 
Housing Authority that owned or operated 250 or more public housing 
units on October 1, 1997, the modernization allocation equals the 
number of Low Rent, Mutual Help, and Turnkey III FCAS units multiplied 
by the national per unit amount of allocation for FY1996 modernization 
multiplied by an adjustment factor for inflation.
    (2) For Indian tribes with an Indian Housing Authority that owned 
or operated fewer than 250 public housing units on October 1, 1997, the 
modernization allocation equals the average amount of funds received 
under the assistance program authorized by section 14 of the 1937 Act 
(not including funds provided as emergency assistance) for fiscal years 
1992 through1997.
    6. Add Sec.  1000.319 to read as follows:


Sec.  1000.319  What would happen if a recipient misreports or fails to 
correct Formula Current Assisted Stock (FCAS) information on the 
Formula Response Form?

    (a) A recipient is responsible for verifying and reporting changes 
to their Formula Current Assisted Stock (FCAS) on the Formula Response 
Form to ensure that data used for the IHBG Formula are accurate (see 
Sec.  1000.315). Reporting shall be completed in accordance with 
requirements in this subpart D and the Formula Response Form.
    (b) If a recipient receives an overpayment of funds because it 
failed to report such changes on the Formula Response Form in a timely 
manner, the recipient shall be required to repay the funds within five 
fiscal years. HUD shall subsequently distribute the funds to all Indian 
tribes in accordance with the next IHBG Formula allocation.
    (c) A recipient will not be provided back funding for any units 
that the recipient failed to report on the Formula Response Form in a 
timely manner.
    (d) HUD shall have three years from the date a Formula Response 
Form is sent out to take action against any recipient that fails to 
correct or make appropriate changes on that Formula Response Form. 
Review of FCAS will be accomplished by HUD as a component of A-133 
audits, routine monitoring, FCAS target monitoring or other reviews.
    7. Revise Sec.  1000.326(b) to read as follows:


Sec.  1000.326  What if a formula area is served by more than one 
Indian tribe?

* * * * *
    (b) Tribal membership in the geographic area (not to include dually 
enrolled tribal members) will be based on data that all Indian tribes 
involved agree to use. Suggested data sources include tribal enrollment 
lists, the U.S. Census, Indian Health Service User Data, and Bureau of 
Indian Affairs data.
* * * * *
    8. Revise Sec.  1000.328 to read as follows:


Sec.  1000.328  What is the minimum amount that an Indian tribe may 
receive under the need component of the formula?

    (a) Subject to the eligibility criteria described in paragraph (b) 
of this section, the minimum allocation in any fiscal year to an Indian 
tribe under the need component of the IHBG Formula shall equal 
0.007826% of the available appropriations for that fiscal year after 
set asides.
    (b) To be eligible for the minimum allocation described in 
paragraph (a) of this section, an Indian tribe must:
    (1) Receive less than $200,000 under the FCAS component of the IHBG 
Formula for the fiscal year; and
    (2) Demonstrate the presence of any households at or below 80 
percent of median income.
    9. In Sec.  1000.330, designate the existing text as paragraph (a) 
and add new paragraphs (b) and (c) to read as follows:


Sec.  1000.330  What are the data sources for the need variable?

* * * * *
    (b) The data for the need variables shall be adjusted annually 
beginning the year after the need data is collected, using Indian 
Health Service projections based upon birth and death rate data as 
provided by the National Center for Health Statistics.
    (c) Indian tribes may challenge the data described in paragraphs 
(a) and (b) of this section pursuant to Sec.  1000.336.
    10. Revise Sec.  1000.336 to read as follows:


Sec.  1000.336  How may an Indian tribe, TDHE, or HUD challenge data or 
appeal HUD formula determinations?

    (a) An Indian tribe, TDHE, or HUD may challenge data used in the 
IHBG Formula and HUD formula determinations regarding:
    (1) U.S. Census data;
    (2) Tribal enrollment;
    (3) Formula area
    (4) Formula Current Assisted Stock (FCAS);
    (5) Total Development Cost (TDC);
    (6) Fair Market Rents (FMRs); and
    (7) Indian Health Service projections based upon birth and death 
rate data provided by the National Center for Health Statistics.
    (b) An Indian tribe or TDHE may not challenge data or HUD formula 
determinations regarding Allowable Expense Level (AEL) and the 
inflation factor.
    (c) The challenge and the collection of data and the appeal of HUD 
formula determinations is an allowable cost for IHBG funds.
    (d) An Indian tribe or TDHE that: seeks to appeal data or a HUD 
formula

[[Page 9500]]

determination, and has data in its possession that are acceptable to 
HUD, may submit the data and proper documentation to HUD. Data used to 
challenge data contained in the U.S. Census must meet the requirements 
described in Sec.  1000.330(a). Further, in order for a census 
challenge to be considered for the upcoming fiscal year allocation, 
documentation must be submitted by March 30th.
    (e) HUD shall respond to all challenges or appeals not later than 
45 days after receipt and either approve or deny the validity of such 
data or challenge to a HUD formula determination in writing, setting 
forth the reasons for its decision. Pursuant to HUD's action, the 
following shall apply:
    (1) In the event HUD challenges the validity of the submitted data, 
the Indian tribe or TDHE and HUD shall attempt in good faith to resolve 
any discrepancies so that such data may be included in the formula 
allocation.
    (2) Should the Indian tribe or TDHE and HUD be unable to resolve 
any discrepancy within 30 calendar days of receipt of HUD's denial, the 
Indian tribe or TDHE may request reconsideration of HUD's denial in 
writing. The request shall set forth justification for reconsideration.
    (3) Within 20 calendar days of receiving the request, HUD shall 
reconsider the Indian tribe or TDHE's submission and either affirm or 
reverse its initial decision in writing, setting forth HUD's reasons 
for the decision.
    (4) Pursuant to resolution of the dispute:
    (i) If the Indian tribe or TDHE prevails, an adjustment to the 
Indian tribe's or TDHE's subsequent allocation for the subsequent year 
shall be made retroactive to include only the disputed fiscal year(s); 
or
    (ii) If HUD prevails, it shall issue a written decision denying the 
Indian tribe or TDHE's petition for reconsideration, which shall 
constitute final agency action.
    (f) In the event HUD questions that the data contained in the 
formula does not accurately represent the Indian tribe's need, HUD 
shall request the Indian tribe to submit supporting documentation to 
justify the data and provide a commitment to serve the population 
indicated in the geographic area.
    11. Revise Sec.  1000.340 to read as follows:


Sec.  1000.340  What if an Indian tribe is allocated less funding under 
the IHBG Formula than it received in Fiscal Year 1996 for operating 
subsidy and modernization?

    (a) If an Indian tribe is allocated less funding under the 
modernization allocation of the formula pursuant to Sec.  
1000.316(b)(2) than the calculation of the number of Low Rent, Mutual 
Help, and Turnkey III FCAS units multiplied by the national per unit 
amount of allocation for Fiscal Year 1996 modernization multiplied by 
an adjustment factor for inflation, the Indian tribe's modernization 
allocation is calculated under Sec.  1000.316(b)(1). The remaining 
grants are adjusted to keep the allocation within available 
appropriations.
    (b) If an Indian tribe is allocated less funding under the formula 
than an IHA received on its behalf in Fiscal Year 1996 for operating 
subsidy and modernization, its grant is increased to the amount 
received in Fiscal Year 1996 for operating subsidy and modernization. 
The remaining grants are adjusted to keep the allocation within 
available appropriations.

    Dated: January 28, 2005.
Michael Liu,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 05-3642 Filed 2-24-05; 8:45 am]
BILLING CODE 4210-33-P