[Federal Register Volume 81, Number 225 (Tuesday, November 22, 2016)]
[Rules and Regulations]
[Pages 83674-83687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27208]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 1000
[Docket No. FR-5650-F-14]
RIN 2577-AC90
Native American Housing Assistance and Self-Determination Act;
Revisions to the Indian Housing Block Grant Program Formula
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Final rule.
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SUMMARY: This final rule revises the Indian Housing Block Grant (IHBG)
Program allocation formula authorized by section 302 of the Native
American Housing Assistance and Self-Determination Act of 1996, as
amended (NAHASDA). 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 this final rule with active tribal participation and using
the procedures of the Negotiated Rulemaking Act of 1990. The 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: Effective Date: December 22, 2016.
FOR FURTHER INFORMATION CONTACT: Heidi J. Frechette, Deputy Assistant
Secretary for Native American Programs, Office of Public and Indian
Housing, Department of Housing and Urban Development, 451 Seventh
Street SW., Room 4126, Washington, DC 20410, telephone number 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 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, codified at 24 CFR part 1000,
recognize tribal self-determination and self-governance while
establishing reasonable standards of accountability. Reflective of
this, section 106 of NAHASDA provides that HUD shall develop
implementing regulations with active tribal participation and using the
procedures of the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570).
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 developed as part of the NAHASDA negotiated process. Based on
the amount of funding appropriated for the IHBG program, HUD calculates
the annual grant for each Indian tribe and provides this information to
the Indian tribes. Indian tribes are required to submit to HUD an
Indian Housing plan that includes, among other things, a description of
planned activities and statement of needs. If the Indian Housing Plan
complies with statutory and regulatory requirements, the grant is
awarded.
[[Page 83675]]
Following the enactment of the Native American Housing Assistance
and Self-Determination Reauthorization Act of 2008 (Pub. L. 110-411,
approved October 14, 2008) (NAHASDA Reauthorization Act) HUD
established a negotiated rulemaking committee \1\ that focused on
implementing the NAHASDA Reauthorization Act and prior amendments to
NAHASDA, except those provisions which govern the NAHASDA allocation
formula. As a result of that negotiated rulemaking, HUD published a
final rule on December 3, 2012 (77 FR 71513).
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\1\ 75 FR 423 (January 5, 2010).
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On July 3, 2012 (77 FR 39452) and September 18, 2012 (77 FR 57544),
HUD announced its intent to establish a negotiated rulemaking committee
for the purpose of reviewing the NAHASDA allocation formula regulations
at 24 CFR part 1000, subpart D, and negotiating recommendations for a
possible proposed rule modifying the IHBG formula. On July 30, 2013 (78
FR 45903), after considering public comment on the proposed membership,
HUD published a Federal Register document announcing the final list of
members of the IHBG Formula Negotiated Rulemaking Committee (Committee)
and announcing the date of the first meeting of the Committee. The
Committee consists of 24 designated representatives of tribal
governments (or authorized designees of those tribal governments)
which, as required by NAHASDA, reflects a balanced representation of
Indian tribes geographically and based on size, and two HUD
representatives.
In developing this final rule, the Committee met nine times.
Committee meetings took place on August 27-28, 2013, September 17-19,
2013, April 23-24, 2014, June 11-13, 2014, July 29-31, 2014, August 26-
28, 2014, August 11-13, 2015, January 26-27, 2016, and September 20-21,
2016. The Committee agreed to operate based on consensus rulemaking and
its approved charter and protocols. All of the Committee meetings were
announced in the Federal Register and were open to the public.\2\
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\2\ See, 78 FR 45903 (July 30, 2013); 78 FR 54416 (September 4,
2013); 79 FR 14204 (March 13, 2014); 79 FR 28700 (May 23, 2014); 80
FR 30004 (May 26, 2015); 80 FR 33157 (June 11, 2015); 81 FR 881
(January 8, 2016); 81 FR 57506 (August 23, 2016).
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During this negotiated rulemaking, the Committee undertook a
comprehensive review of the IHBG formula and statutory changes that
needed to be addressed in the regulations. With the full and active
participation of the tribes, HUD and the Committee identified certain
areas of the IHBG formula that required clarification, were outdated,
or could be improved and, on May 31, 2016, published a proposed rule
(81 FR 34290). With the exception of changes to Sec. 1000.330(b)(ii),
the proposed rule reflected the consensus decisions reached by the
Committee during the negotiated rulemaking process on the best way to
address these issues.
The Committee convened for a 2-day meeting in Oklahoma City, OK, on
September 20-21, 2016, to review and consider public comments received
on the proposed rule. This final rule takes into consideration the
public comments on the proposed rule, and makes some changes, based on
the public comments, to the May 31, 2016, proposed rule. It also
reflects the consensus decisions reached by HUD and the Committee.
II. Changes and Clarifications Made in This Final Rule
This final rule follows publication of the May 31, 2016, proposed
rule and takes into consideration the public comments received on the
proposed rule. In response to the public comments, a discussion of
which is presented in the following section of this preamble, and in
further consideration of issues addressed at the proposed rule stage,
HUD and the Committee are making the following regulatory changes at
this final rule stage:
HUD has decided not to move forward with the single non-
consensus provision in the proposed rule; the adjustment to the
American Community Survey (ACS) proposed in Sec. 1000.330(b). HUD
meaningfully considered the public comments and engaged in extensive
additional analysis. HUD has decided that the adjustment does not do
enough to address volatility associated with small areas to warrant its
introduction as a non-consensus adjustment.
The Committee agreed by consensus to add a new Sec.
1000.318(d) to establish the eligibility criteria for Formula Current
Assisted Stock (FCAS) units that are demolished and rebuilt. The
provision provides that a unit demolished pursuant to a planned
demolition may be considered eligible as a FCAS unit if, after
demolition is completed, the unit is rebuilt within one year. The
provision provides that demolition is completed when the site of the
demolished unit is ready for rebuilding and allows IHBG recipients to
request approval for a one-time, one-year extension based on the
formula factors in section 302(c)(1) of NAHASDA.
The Committee agreed to revise Sec. 1000.329(c) which
requires that a tribe receiving Minimum Total Grant Allocation of
Carryover Funds, certify the presence of households at or below 80
percent of median income, to more closely parallel a similar provision
codified at Sec. 1000.328(b)(2).
The Committee agreed to clarify the undercount adjustment
to the U.S. Decennial Census for Reservation and Trust Lands in Sec.
1000.330(b). Specifically, the Committee agreed to change ``Indian
Lands in Remote Alaska'' to ``For Remote Alaska as designated by the
U.S. Census Bureau, Alaska Formula Areas in Remote Alaska shall be
treated as Reservation and Trust Lands for purposes of this
paragraph''.
III. The Public Comments
The public comment period for this rule closed on August 1, 2016,
and HUD received 22 comments. Included in these 22 comments were 2 sets
of identical comments; one set that contained 7 identical comments and
a second set that contained 2 identical comments. Comments were
submitted by federally recognized Indian tribes, tribal and regional
housing authorities, TDHEs, associations comprised of tribes, tribal
housing authorities, a law office, a nonprofit devoted to issues of
race and ethnicity, and members of the public.
As discussed in this preamble, the Committee met on September 20
and 21, 2016, to review and consider responses to the public comments.
This section of the preamble addresses the significant issues raised in
the public comments and organizes the comments by subject category,
with a brief description of the issue, followed by the Committee's
response.
A. Comments Regarding Non-Consensus Provision To Control Total Weights
Within ACS (Sec. 1000.330(b))
Comment: Control weights within the ACS not a valid measure of
other variables. Several commenters expressed concern with the
adjustment of Sec. 1000.330(b) and stated it is not reasonable to
assume that an undercount of one variable, American Indian and Alaska
Native (AIAN) persons, should be applied to the other variables.
Response: The Committee acknowledges this was a non-consensus
decision taken by HUD. HUD appreciates the comment. HUD proposed the
adjustment to reduce some of the likely error in the ACS for small
areas caused by county based sampling in the ACS and to address the
undercount in the base Decennial
[[Page 83676]]
Census that is used as a core component of the weighting of ACS data.
After careful consideration, however, HUD has decided not to move
forward with the adjustment. HUD has determined that it does not do
enough to address volatility associated with small areas to warrant its
introduction as a non-consensus adjustment.
Comment: Opposition to implementing a non-consensus adjustment to
the ACS data. Several commenters expressed disappointment with HUD in
proposing to implement the reweighting adjustment that is part of Sec.
1000.330(b) despite broad opposition from tribal Committee members. The
commenters urged HUD to respect the perspective of the majority of the
Committee tribal members and not implement the reweighting proposal.
Other commenters stated that HUD should not unilaterally move forward
with its own proposals if no consensus is found but rather should rely
on the existing language of the regulations since that approach was the
result of a prior consensus between HUD and the tribes.
Several commenters also stated that they do not support the
implementation of any non-consensus items, and referred to the adoption
of the ACS adjustment. Several of these commenters also concluded that
implementing a non-consensus item severely dilutes the significance of
this process, is not a sign of negotiating in good faith, and is
inconsistent with what constitutes Government-to-Government
consultation. One of the commenters also stated that the summary
section of the proposed rule was inaccurate by stating that the
proposed regulatory changes reflect the consensus decision of the
Committee since the adoption of the data source itself was not made by
consensus, and recommended that HUD revise the sentence to reflect that
the proposal included regulatory changes that did not achieve
consensus.
Response: HUD appreciates the concerns of the commenters but
disagrees with the suggestion that moving forward unilaterally with
this non-consensus item reflects a lack of good faith or detracts from
the Government-to-Government relationship that HUD has with the tribes.
HUD has agreed, however, to remove the ACS adjustment (control total
weights within the ACS).
B. Comments Regarding Minimum Total Grant Allocation of Carryover Funds
(Sec. 1000.329).
Comment: The Minimum Total Grant Allocation of Carryover Funds is
inconsistent with NAHASDA. One commenter expressed opposition to the
Minimum Total Grant Allocation of Carryover Funds stating that it is an
arbitrary allocation rather than a need-based allocation, as required
by NAHASDA. The commenter stated that adjusting the formula simply
because carryover funds are added is a departure from the need-based
model and will mean funding is withheld from tribes with more
demonstrable need. The commenter suggested that if carryover funds
cannot be added to the total allocation, then the funds should be used
for drug clean-up grants.
Response: The Committee considered this comment and disagrees that
Sec. 1000.329 is arbitrary and not based on need. In considering the
provision, the Committee sought to augment the minimum allocation
amount already provided under the need component in Sec. 1000.328 in
the event there are funds voluntarily returned or not accepted by other
tribes in the prior year (``carryover''). Just as Sec. 1000.328
recognized that allocations in minimum amounts are needed if there
exist eligible households below 80 percent of median income in the
tribe's formula area, proposed Sec. 1000.329 simply recalibrates the
minimum if there are carryover funds. The Committee also notes that HUD
does not have the statutory authority to award funds specifically to
fund drug control/elimination grants, however, grantees may choose to
spend their IHBG funds to remediate units as doing so is an eligible
activity in the IHBG program.
Comment: Minimum Total Grant Allocation of Carryover Funds should
be clarified. Another commenter recommended that Sec. 1000.329(c) be
clarified to read, ``To be eligible, a tribe must certify in its Indian
Housing Plan the presence of any eligible households at or below 80
percent of median income.''
Response: The Committee considered this comment and agrees that
Sec. 1000.329(c) be clarified to parallel Sec. 1000.328.
C. Comments Regarding the Data Sources for the Need Variables (Sec.
1000.330).
Comment: Counting and averaging of the U.S. Decennial Census data.
Several commenters recommended the U.S. Decennial Census data be
adjusted for both over and undercounts for accuracy. The commenters
also requested clarification on who determines what is ``significant''
since it is not defined in the regulations. Other commenters
recommended that HUD must determine the actual undercounts on a
reservation-by-reservation basis instead of utilizing an average
undercount for its adjustment.
Response: The Committee considered these comments and agreed that
the regulation should not make adjustments to add for any statistically
significant overcount. The Committee during its eighth session
considered how to address undercounts and overcounts reported by the
U.S. Census Bureau. The Committee, by consensus, determined that
adjustments to data should be made for statistically significant
undercounts. The Committee did not reach consensus on any adjustments
to data based upon overcounts. The Census reports reviewed during the
convening of the Committee did not indicate any statistically
significant overcounts. The U.S. Census Bureau determines whether
overcounts or undercounts are statistically significant. Currently
there is no way to determine actual undercounts or overcounts on a
reservation-by-reservation basis.
Comment: The term ``Indian Lands'' is ambiguous and needs to be
clarified in the undercount adjustment to the U.S. Decennial Census.
Several commenters stated that the term ``Indian Lands'' in Sec.
1000.330(b) needs to be clarified as it pertains to Alaska Native
villages in remote Alaska. One commenter stated that the term was not
meant to mean ``Indian Country'' but was meant to refer to the lands
within the formula area of the villages (Alaska Native Village
Statistical Areas). The commenter recommended that the Committee not
change this section if this is the understanding of how this term would
be interpreted. The commenter requested, however, that the term be
clarified as including those lands comprising the formula areas of the
Alaska Native Villages if there is confusion regarding this
interpretation.
Another commenter stated that aggravating the ambiguity is the
absence of any definition of the term ``Indian Lands'' in NAHASDA or
the NAHASDA regulations, and the various uses of the term by other
Federal agencies (e.g., the Department of Energy under the Alaska
Native Claims Settlement Act, 25 U.S.C. 3501). This commenter stated
that there are no reservation or trust lands in Remote Alaska other
than the Metlakatla Reservation, and concluded that confining the term
to reservations and trust lands in this unique context would render the
provision meaningless. The commenters asserted that the Committee
adopted the term ``Indian Lands'' in the committee briefings to also
include Alaskan Native Village areas in remote Alaska and proposed a
documented definition or a technical amendment
[[Page 83677]]
specifically stating that Alaskan Native Villages or Indian Lands in
remote Alaska shall be treated as reservation and trust lands.
Response: The Committee agreed with the commenters on the ambiguity
of the term ``Indian Lands,'' and clarified the regulation at Sec.
1000.330 by changing ``Indian Lands in Remote Alaska'' to ``For Remote
Alaska as designated by the U.S. Census Bureau, Alaska Formula Areas in
Remote Alaska shall be treated as Reservation and Trust Lands'' for
purposes of this paragraph.
Comment: Require HUD to issue a report on data source and update
data source if necessary (Proposed Sec. 1000.330(d)). A commenter
recommended that the volatility control provision, in Sec. 1000.331,
be retained if HUD proceeds with using the ACS, as adjusted, to
determine the variables described in Sec. 1000.324. The commenter also
recommended that the rule require HUD to renegotiate this provision if
it determines that the use of ACS data or U.S. Census Bureau county
level population estimates for Native Americans results in inaccurate
figures. Specifically, the commenter recommended the addition of the
following provision:
Sec. 1000.330(d). After fiscal year 2018 but before fiscal year 2023,
HUD shall prepare a report on the use of the data sources in this
Section, including whether the data sources provide reliable
information on the funding variables described on Sec. 1000.324, and
provide tribes an opportunity to comment on the report. If the report
determines that the data sources used in this section result in
unreliable data, HUD shall propose a more reliable data source.
Response: The Committee considered this comment and agreed not to
add the language proposed by the commenter. In reaching this decision,
the Committee notes that the language recommended is ambiguous.
Additionally, the IHBG Negotiated Rulemaking Data Study Group
extensively evaluated all data sources used in the formula during
negotiated rulemaking. The resulting report outlining the Committee's
Data Study Group's process and final recommendations to the Committee
was published with the proposed rule.
Comment: The American Community Survey (ACS) data is unreliable.
One commenter stated that they did not support Sec. 1000.330(b)(ii)
because the ACS is neither reflective nor representative of the
commenter's tribal community. The commenter also stated that the flaws
in the ACS data cannot be fixed by a weighting that uses the ACS count
of American Indian and Native persons. Another commenter questioned the
accuracy of ACS data given the sampling, response and inclusion rates,
as well as its failure to capture tribal enrollment information. The
commenter concluded that reliance on these data would harm poorer
tribes with the worst housing, and thus disproportionately affect the
funding accessible to them via the need component of the IHBG funding
formula.
Response: The Committee's Data Study Group did a thorough review of
the ACS as a data source. Although consensus was not achieved on using
the ACS as a data source, HUD has determined that the ACS is the most
current and accurate data available for measuring the need for funding
under the IHBG. The ACS data are more current than the data currently
being used in the formula and are available for all eligible tribes, as
discussed in the final Data Study Group Report. HUD recognizes that the
ACS data does have some limitations. In addition, the 4.88 percent
undercount of the 2010 Decennial Census for Reservation and Trust Lands
is potentially present in the ACS because the ACS uses the Decennial
Census, adjusted for post Census population growth, as its base data
for weighting the ACS.
HUD is committed to work with the Census Bureau to improve the
accuracy of the counts. Tribes may still challenge the ACS data.
D. Comments Regarding Volatility Control (Sec. 1000.331).
Comment: The Committee should clarify the volatility control
provision. Several commenters stated that a strict construction of
Sec. 1000.331(a) would defeat the intent of the Committee in agreeing
to the provision. According to these commenters, the intent of Sec.
1000.331(a) was to limit the impact of adopting a new data source (ACS)
on those tribes that will be significantly and adversely affected by
that conversion. The commenters wrote that as written, however, the
relief would only be available if the tribe can show that the greater
than 10 percent needs grant decline occurred ``solely as a direct
result of the introduction'' of the ACS. The commenters stated that the
record of the Committee proceedings indicates that was not the
Committee's intent. One commenter presented several examples, including
one which provided that if a tribe suffered a 65 percent reduction and
can trace only 64.9 percent of its reduction to adoption of the ACS it
would be disqualified from receiving any volatility control assistance,
because its decline would not have been ``solely as a direct result of
the introduction'' of ACS. The commenters recommended that Sec.
1000.331(a) be revised by substituting ``primarily as a result'' for
``solely as a direct result.'' These same commenters also recommended
that the intent of Sec. 1000.331(a) be clarified by adding a
definition for ``primarily as a result'' to read, ``As used in this
section, `primarily as a result' means that the introduction of a new
data source, in-and-of-itself, would result in greater than a 10
percent decline in the tribe's need component allocation, irrespective
of any declines attributable to causes other than introduction of that
data source.''
Response: Ensuring that grantees have stable allocations is a
priority for the Committee. The original intent of Sec. 1000.331 was
to protect tribes against significant fluctuations with the
introduction of the Decennial Census and ACS data. When HUD introduces
a new data set, HUD will not apply volatility control. When HUD
introduces a new data source, HUD will apply volatility control. When
HUD first introduces ACS data into the IHBG formula in Fiscal Year
2018, HUD will apply volatility control. When a new ACS data set is
available from year to year, HUD will not apply volatility control.
When new Decennial Census data is available and is introduced into the
formula, HUD will apply volatility control (e.g., 2020 Decennial
Census).
HUD understands, however, the concern expressed by the commenters.
HUD is able to isolate the impact on tribes' funding allocations that
is due to the introduction of the ACS as a new data source. This
ability to isolate the impact, and apply the control on the basis of
that impact alone alleviates the concern of the commenters. HUD will
continue to apply the same methodology to calculate the impacts of
introduction of a new data source to avoid the concerns raised by the
commenters with the agreed upon language.
E. Comments Regarding Demolition and Rebuilding of Formula Current
Assisted Stock (FCAS) Units (Sec. 1000.318(d))
Comment: Recommended language for demolition and rebuilding should
provide maximum flexibility to tribes. One commenter supported the
preamble definition of demolition ``as occurring only when a recipient
voluntarily demolishes units in order to clear a site for a new
replacement unit.'' The commenter also recommended that the Committee
define ``demolition'' in a way as to provide maximum flexibility to
tribes. Flexibility is important,
[[Page 83678]]
according to the commenter, because a significant problem that many
tribes face are housing units that are irreparably contaminated by
methamphetamine production and tribes must engage in time-consuming
testing of a substance that cannot be seen or smelled.
The second problem, according to the commenter, is the potentially
limited time for rebuilding the home where the weather conditions can
delay or completely halt construction from October through May. Tribes
should not lose their FCAS funds if these homes are not rebuilt within
the one-year time frame. The commenter recommended, therefore, a
definition for demolition that takes these concerns into account and
allows tribes and TDHEs maximum flexibility in rehabilitation and
reconstruction of FCAS units that are destroyed or demolished due to
events beyond the control of the tribe/TDHE.
Response: The Committee appreciates the commenter's recommendation
to define demolition in a way that maximizes flexibility for tribes. As
stated, the intent of Sec. 1000.318(d) is to incentivize tribes to
rebuild expeditiously within a reasonable time period. The Committee
understands the unique construction constraints faced by some IHBG
recipients due to short building seasons, units contaminated by
methamphetamine or other contaminants, remote locations and high
construction costs and has considered these factors in the structuring
of the demolition provision.
Comment: Recommended language for demolition and rebuilding.
Another commenter stated that section 302(b)(1)(C) of NAHASDA triggers
a one-year time period at the time of demolition, regardless of how
demolition occurs. The commenter stated that section 302(b)(1)(C) does
not require completion of the unit within the one-year period, but
requires that the construction process begin within one year of the
demolition. Based on this interpretation of the statute, the commenter
recommended that the Committee adopt the following language:
If a FCAS unit is demolished, it will continue to be
eligible as a FCAS unit if the following conditions are met:
[cir] Construction of a replacement unit begins within one year of
the time the original unit is demolished. If the unit is demolished by
the occurrence of a natural disaster or fire, demolition shall be
defined to occur on the date of the event. If the unit is demolished by
the voluntary act of the recipient, demolition shall be defined to
occur on the date that the replacement unit is demolished to a point
where construction can commence;
[cir] The replacement unit is complete within 24 months from the
commencement of construction, except that if more than 5 units are
being replaced, the time for completion of the units shall be 36
months.
Response: The Committee appreciates the recommendation submitted by
the commenter on the demolition provision pursuant to Sec.
1000.318(d). The Committee considered the proposed language but
ultimately concluded that the statute requires that rebuilding be
completed within one year of the demolition. The Committee agreed by
consensus, however, to a revised Sec. 1000.318(d) that provides that
the one-year clock does not begin until demolition is complete.
Comment: Recommended language for demolition and rebuilding based
on defining the terms ``demolish'' and ``rebuilds''. Another commenter
wrote that the purposes of the statute is to create an incentive for
tribes to expeditiously rebuild housing units that are so badly
damaged, as to require demolition and to give tribes a reasonable
period of time to rebuild. The commenter wrote that Congressional
intent was to incentivize rebuilding in a reasonable time but balance
that goal with the realities that Indian country suffers not only from
remoteness but short construction seasons. The commenter recommended
that the Committee define the terms ``demolish'' and ``rebuilds'' using
a standard dictionary definition and consistent with Congressional
intent. With regard to the term ``demolish'' the commenter stated that
standard dictionary definitions convey a sense of completeness and
define this term as requiring a deliberate, human, caused process. In
defining ``rebuilds'' the commenter notes that the statute uses the
present active tense. With these foundations, the commenter recommends
that the Committee adopt the following provision:
If an affordable housing unit is demolished and rebuilding
occurs within 1 year of demolition of the unit, the unit may continue
to be considered Formula Current Assisted Stock.
As used in this subsection:
[cir] Demolition'' means the intentional act or process of the
tribe, and demolition occurs when the structure is completely destroyed
and its component parts, including demolition debris, are removed from
the site; and
[cir] Rebuilding occurs when the tribe has made substantial,
initial, on-going site improvements to the site of the replacement
housing unit, including laying or altering the foundation.
Response: The Committee appreciates the commenter's thoughtful
responses on the demolition issue posed in the proposed rule.
Specifically, the comments regarding the past and present tense of the
terms ``demolish'' and ``rebuilds'' respectively, as used in the
statute, offered the Committee a useful starting point for developing a
revised section addressing demolition. The Committee also agrees that
the purpose of the statute is to create an incentive for tribes to
expeditiously rebuild housing units. The revised demolition regulation
agreed to by consensus at Sec. 1000.318(d) incorporates and builds on
the comments provided.
F. Other Issues and Comments.
Comment: There is a need for a federally conducted National Tribal
Survey. Several commenters recommended that tribes continue to find
common ground on changes to the IHBG funding formula and push for the
self-determined goal of building tribally driven data sources. These
commenters also stated that it is the duty of HUD and the Federal
government to assist tribes in seeking data sources that most
appropriately reflect and represent the conditions and characteristics
of their tribal communities and that this includes providing tribes the
training and technical assistance to develop their own tribal data
sources for housing and community development purposes.
Other commenters recommended that HUD should consider developing or
using a federally conducted national tribal survey to collect
demographic and enrollment information for NAHASDA-eligible tribes.
According to the commenters, a National Tribal Survey, jointly designed
by HUD and tribes, would collect demographic data directly related to
the IHBG formula. The commenters wrote that the survey could be
administered by the Census Bureau under contract from HUD, much the
same way the American Housing Survey is now done for special data
related to public housing information. The commenters concluded that
there would be many advantages to such a survey, including a focus on
information essential for IHBG fund allocation, providing flexibility
in survey design to accommodate future changes to the IHBG formula, and
using said survey to inform a more accurate allocation of funds in
other Indian programs like education and health care.
Response: The Committee emphasizes that the IHBG Negotiated
Rulemaking Data Study Group examined the development of a National
Tribal
[[Page 83679]]
Survey that would rely on tribally driven data sources. The pros and
cons of the Committee's analysis are presented in the Final Data Study
Group Report and, more particularly, the individual data source
evaluations in the appendices. No consensus could be reached on using
any alternative to ACS data, including a National Tribal Survey. HUD
has stated that it does not have the resources to design or administer
a National Tribal Survey, or to audit data collection efforts to ensure
that data from tribal sources is being collected in a fair and
equitable manner, and thus unusable in the IHBG formula.
Comment: Impact on other organizations that use the IHBG factors or
data. One commenter responded to HUD's request for public comment
regarding how the proposed changes to the IHBG formula would
potentially impact nonprofits, state and local governments, and other
organizations that are not IHBG recipients. The commenter stated that
the effect of the IHBG formula on outside stakeholders should have no
bearing on the implementation of changes to the IHBG formula. The
commenter also stated that the purpose of the IHBG formula is to
allocate federal Indian Housing resources to eligible recipients to
address the housing needs of Alaska Native and American Indian families
and that impact on other entities is not within the scope of factors
that HUD may consider in the course of negotiating the IHBG formula.
Response: The Committee is aware that some organizations, such as
the U.S. Department of Transportation, use the IHBG formula for various
reasons. Nevertheless, the Committee agrees with the commenter that the
effect of the IHBG formula on these outside stakeholders should have no
bearing on whether such changes are implemented. As stated by the
commenter, section 302 of NAHASDA delineates the factors that the
Committee must consider in determining the formula. HUD is not
authorized to consider in the course of negotiating the IHBG formula
how elements of the formula might impact entities that are not IHBG
recipients.
Comment: The negotiated rulemaking was successful. One commenter
thanked everyone who was involved in the negotiated rulemaking process
and described the process as thoughtful and deliberate, and the final
product the best that could be expected given the limitations on
current funding for the program. The commenter expressed support for
all of the final proposed changes, and described the rule as necessary,
fair and consistent with the mission of the Committee and the IHBG
Program overall, and developed in the spirit of compromise. The
commenter concluded that moving to an updated data source is the single
greatest achievement of this Committee and urged HUD to adopt this
final language and begin implementation as provided in the proposed
rule. Another commenter wrote to recognize the many significant,
positive outcomes of this negotiated rulemaking. This commenter stated
that despite the somewhat distributive nature of this process, HUD and
tribes were able to reach consensus on numerous important issues,
including the minimum allocations of carryover funds, the undisbursed
funds factor, the volatility control and establishing adjustments for
undercounts. Both commenters agreed that the negotiated rulemaking
process was successful.
Response: The Committee appreciates these comments and agrees that
this Negotiated Rulemaking was educational, productive and successful.
The Committee also extends its appreciation to each tribal
representative and to HUD leadership and staff for their hard work and
dedication to the Negotiated Rulemaking process, and believes that this
final rule reflects the thoughtful and deliberate work of everyone
involved in this rulemaking, The Committee believes that the success of
the Negotiated Rulemaking rests on the spirit of cooperation and hard
work that tribal representatives and HUD leadership and staff brought
to the negotiations.
IV. Findings and Certifications
Regulatory Review--Executive Orders 12866 and 13563
Under Executive Order 12866 (Regulatory Planning and Review), a
determination must be made whether a regulatory action is significant
and, therefore, subject to review by the Office of Management and
Budget (OMB) in accordance with the requirements of the order.
Executive Order 13563 (Improving Regulations and Regulatory Review)
directs executive agencies to analyze regulations that are ``outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.'' Executive Order 13563 also directs that, where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, agencies are to identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public. This final rule was determined not to be a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866, and therefore was not reviewed by OMB.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been approved by OMB in accordance with the Paperwork Reduction Act of
1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2577-0218.
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.
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 for any rule that is 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.
The requirements of this rule apply to Indian tribal governments and
their tribal housing authorities. Tribal governments and their tribal
housing authorities are not covered by the definition of ``small
entities'' under the RFA. Accordingly, the undersigned certifies that
this rule will not have a significant impact on a substantial number of
small entities.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits, to the
extent practicable and permitted by law, an agency from promulgating a
regulation that has federalism implications and either imposes
substantial direct compliance costs on state and local governments and
is not required by statute, or preempts state law, unless the relevant
requirements of section 6 of the Executive Order are met. This rule
does not have federalism implications and does not impose substantial
direct compliance costs on state and local governments or preempt state
law within the meaning of the Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for federal agencies to
assess the effects of their regulatory actions on state, local, and
tribal governments, and on the private sector. This rule will not
impose any federal mandate on any
[[Page 83680]]
state, local, or tribal government, or on the private sector, within
the meaning of UMRA.
Environmental Review
This rule is a statutorily required establishment of a rate
determination that does not constitute a development decision that
affects the physical condition of specific project areas or buildings
sites. Accordingly, under 24 CFR 50.19(c)(6), this rule is
categorically excluded from environmental review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321).
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance Number (CFDA) for Indian
Housing Block Grants is 14.867, and the CFDA for Title VI Federal
Guarantees for Financing Tribal Housing Activities is 14.869.
List of Subjects in 24 CFR Part 1000
Aged, Community development block grants, Grant programs--housing
and community development, Grant programs--Indians, Indians,
Individuals with disabilities, Public housing, Reporting and
recordkeeping requirements.
Accordingly, for the reasons described in the preamble, HUD amends
24 CFR part 1000 as follows:
PART 1000--NATIVE AMERICAN HOUSING ACTIVITIES
0
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).
0
2. In Sec. 1000.302, revise paragraph (2)(i) of the definition of
``Formula area'' to read as follows:
Sec. 1000.302 What are the definitions applicable for the IHBG
formula?
* * * * *
Formula area. * * *
(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 is
providing substantial housing services and will continue to expend or
obligate funds for substantial housing services, as reflected in its
Indian Housing Plan and Annual Performance Report for this purpose.
* * * * *
Sec. 1000.306 [Amended]
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3. In Sec. 1000.306, remove paragraph (c).
0
4. Revise Sec. 1000.310 to read as follows:
Sec. 1000.310 What are the components of the IHBG formula?
The IHBG formula consists of four components:
(a) Formula Current Assisted Stock (FCAS) (Sec. 1000.316);
(b) Need (Sec. 1000.324);
(c) 1996 Minimum (Sec. 1000.340); and
(d) Undisbursed IHBG funds factor (Sec. 1000.342).
0
5. In Sec. 1000.316, add paragraph (c) to read as follows:
Sec. 1000.316 How is the Formula Current Assisted Stock (FCAS)
Component developed?
* * * * *
(c) Conversion. Conversion of FCAS units from homeownership (Mutual
Help or Turnkey III) to low-rent or from low-rent to a home ownership
program.
(1) If units were converted before October 1, 1997, as evidenced by
an amended ACC, then those units will be counted for formula funding
and eligibility purposes as the type of unit to which they were
converted.
(2) If units were converted on or after October 1, 1997, the
following applies:
(i) Funding type. Units that converted after October 1, 1997 will
be funded as the type of unit specified on the original ACC in effect
on September 30, 1997.
(ii) Continued FCAS eligibility. Whether or not it is the first
conversion, a unit converted after October 1, 1997, will be considered
as the type converted to when determining continuing FCAS eligibility.
A unit that is converted to low-rent will be treated as a low-rent unit
for purposes of determining continuing FCAS eligibility. A unit that is
converted to homeownership will be treated as a homeownership unit for
purposes of determining continuing FCAS eligibility.
(3) The Indian tribe, TDHE, or IHA shall report conversions on the
Formula Response Form.
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6. Amend Sec. 1000.318 by redesignating paragraphs (b) and (c) as
paragraphs (c) and (d), respectively, and adding paragraphs (b) and (e)
to read as follows:
Sec. 1000.318 When do units under Formula Current Assisted Stock
cease to be counted or expire from the inventory use for the formula?
* * * * *
(b)(1) A Mutual Help or Turnkey III unit not conveyed after the
unit becomes eligible for conveyance by the terms of the MHOA may
continue to be considered Formula Current Assisted Stock only if a
legal impediment prevented conveyance; the legal impediment continues
to exist; the tribe, TDHE, or IHA has taken all other steps necessary
for conveyance and all that remains for conveyance is a resolution of
the legal impediment; and the tribe, TDHE, or IHA made the following
reasonable efforts to overcome the impediments:
(i) No later than four months after the unit becomes eligible for
conveyance, the tribe, TDHE, or IHA creates a written plan of action,
which includes a description of specific legal impediments as well as
specific, ongoing, and appropriate actions for each applicable unit
that have been taken and will be taken to resolve the legal impediments
within a 24-month period; and
(ii) The tribe, TDHE, or IHA has carried out or is carrying out the
written plan of action; and
(iii) The tribe, TDHE, or IHA has documented undertaking the plan
of action.
(2) No Mutual Help or Turnkey III unit will be considered FCAS 24
months after the date the unit became eligible for conveyance, unless
the tribe, TDHE, or IHA provides evidence from a third party, such as a
court or state or federal government agency, documenting that a legal
impediment continues to prevent conveyance. FCAS units that have not
been conveyed due to legal impediments on December 22, 2016 shall be
treated as having become eligible for conveyance on December 22, 2016.
* * * * *
(e) A unit that is demolished pursuant to a planned demolition may
be considered eligible as a FCAS unit if, after demolition is
completed, the unit is rebuilt within one year. Demolition is completed
when the site of the demolished unit is ready for rebuilding. If the
unit cannot be rebuilt within one year because of relative
administrative capacities and other challenges faced by the recipient,
including, but not limited to geographic distribution within the Indian
area and technical capacity, the Indian tribe, TDHE or IHA may request
approval for a one-time, one-year extension. Requests must be submitted
[[Page 83681]]
in writing and include a justification for the request.
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7. In Sec. 1000.326, revise paragraph (a)(3), redesignate paragraph
(c) as paragraph (d), and add a new paragraph (c) to read as follows:
Sec. 1000.326 What if a formula area is served by more than one
Indian tribe?
(a) * * *
(3) In cases where a State recognized tribe's formula area overlaps
with the formula area of a Federally recognized Indian tribe, the
Federally recognized Indian tribe receives the allocation for the
formula area up to its population cap, and the State recognized tribe
receives the balance of the overlapping area (if any) up to its
population cap.
* * * * *
(c) Upon receiving a request for expansion or redefinition of a
tribe's formula area, if approving the request would create an overlap,
HUD shall follow the notice and comment procedures set forth in
paragraph (2)(ii) of the definition of ``Formula area'' in Sec.
1000.302.
* * * * *
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8. Add Sec. 1000.329 to read as follows:
Sec. 1000.329 What is the minimum total grant allocated to a tribe
if there is carryover funds available?
(a) If in any given year there are carryover funds, then HUD will
hold the lesser amount of $3 million or available carryover funds for
additional allocations to tribes with grant allocations of less than
0.011547 percent of that year's appropriations. All tribes eligible
under this section shall receive a grant allocation equal to 0.011547
percent of that year's appropriations.
(b)(1) If the set-aside carryover funds are insufficient to fund
all eligible tribes at 0.011547 percent of that year's appropriations,
the minimum total grant shall be reduced to an amount which can be
fully funded with the available set-aside carryover funds.
(2) If less than $3 million is necessary to fully fund tribes under
paragraph (a) of this section, any remaining carryover amounts of the
set aside shall be carried forward to the next year's formula.
(c) To be eligible, an Indian tribe must certify in its Indian
Housing Plan the presence of any households at or below 80 percent of
median income.
(d) For purposes of this section, carryover funds means grant funds
voluntarily returned to the formula or not accepted by tribes in a
fiscal year.
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9. Revise Sec. 1000.330 to read as follows:
Sec. 1000.330 What are the data sources for the need variables?
(a) The sources of data for the need variables shall be data that
are available and collected in a uniform manner that can be confirmed
and verified for all AIAN households and persons living in an
identified area. Until fiscal year 2018, the data used are 2000 U.S.
Decennial Census data and any HUD-accepted Census challenges. The 2000
U.S. Decennial Census data shall be adjusted annually using IHS
projections based upon birth and death rate data provided by the
National Center for Health Statistics.
(b)(1) Beginning fiscal year 2018, the data source used to
determine the AIAN persons variable described in Sec. 1000.324(g)
shall be the most recent U.S. Decennial Census data adjusted for any
statistically significant undercount for AIAN population confirmed by
the U.S. Census Bureau and updated annually using the U.S. Census
Bureau county level Population Estimates for Native Americans. For
Remote Alaska as designated by the U.S. Census Bureau, Alaska Formula
Areas in Remote Alaska shall be treated as Reservation and Trust Lands,
unless the U.S. Census Bureau includes Remote Alaska in their Census
Coverage Measurement or comparable study. The data under this paragraph
(b) shall be updated annually using the U.S. Census Bureau county level
Population Estimates for Native Americans.
(2) Beginning fiscal year 2018, the data source used to determine
the variables described in paragraphs (a) through (f) of Sec. 1000.324
shall initially be the American Community Survey (ACS) 5-year
Estimates.
(c) Indian tribes may challenge the data described in this section
pursuant to Sec. 1000.336.
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10. Add Sec. 1000.331 to read as follows:
Sec. 1000.331 How will the impacts from adoption of a new data
source be minimized as the new data source is implemented?
(a) To minimize the impact of funding changes based on the
introduction of a new data source under Sec. 1000.330, in fiscal year
2018 and each year thereafter, if, solely as a direct result of the
introduction of a new data source, an Indian tribe's allocation under
the need component of the formula is less than 90 percent of the amount
it received under the need component in the immediate previous fiscal
year, the Indian tribe's need allocation shall be adjusted up to an
amount equal to 90 percent of the previous year's need allocation.
(b) Nothing in this section shall impact other adjustments under
this part, including minimum funding, census challenges, formula area
changes, or an increase in the total amount of funds available under
the need component.
(c) In the event of a decrease in the total amount of funds
available under the need component, an Indian tribe's adjusted
allocation under paragraph (a) of this section shall be reduced by an
amount proportionate to the reduced amount available for distribution
under the need component of the formula.
(d) Adjustments under paragraph (b) or (c) of this section shall be
made to a tribe's need allocation after adjusting that allocation under
paragraph (a) of this section.
0
11. Revise Sec. 1000.336 as follows:
0
a. In paragraph (a)(6), remove ``and'';
0
b. In paragraph (a)(7), remove the period and add in its place ``;
and'';
0
c. Add paragraph (a)(8); and
0
d. Revise paragraphs (d), (e), and (f).
The addition and revisions read as follows:
Sec. 1000.336 How may an Indian tribe, TDHE, or HUD challenge data
or appeal HUD formula determinations?
(a) * * *
(8) The undisbursed funds factor.
* * * * *
(d) An Indian tribe or TDHE that seeks to appeal data or a HUD
formula determination, and has data in its possession that are
acceptable to HUD, shall submit the challenge or appeal in writing with
data and proper documentation to HUD. An Indian tribe or TDHE may
appeal the undisbursed funds factor no later than 30 days after the
receipt of the formula determination. 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 no later than 45
days after receipt and either approve or deny the appeal in writing,
setting forth the reasons for its decision.
(1) If HUD challenges the validity of the submitted data HUD and
the Indian tribe or TDHE shall attempt in good faith to resolve any
discrepancies so that such data may be included in the formula
allocation.
(2) If HUD denies a challenge or appeal, the Indian tribe or TDHE
may request reconsideration of HUD's denial within 30 calendar days of
receipt of HUD's denial. The request shall be in writing and set forth
justification for reconsideration.
[[Page 83682]]
(3) HUD shall in writing affirm or deny the Indian tribe's or
TDHE's request for reconsideration, setting forth HUD's reasons for the
decision, within 20 calendar days of receiving the request. HUD's
denial of a request for reconsideration shall constitute final agency
action.
(4) If HUD approves the Indian tribe or TDHE's appeal, HUD will
adjust to the Indian tribe's or TDHE's subsequent fiscal year
allocation to include only the disputed fiscal year(s).
(f) In the event HUD questions whether the data contained in the
formula accurately represents the Indian tribe's need, HUD shall
request the Indian tribe to submit supporting documentation to justify
the data and, if applicable, to provide a commitment to serve the
population indicated in the geographic area.
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12. Add Sec. 1000.342 to subpart D to read as follows:
Sec. 1000.342 Are undisbursed IHBG funds a factor in the grant
formula?
Yes, beginning fiscal year 2018. After calculating the initial
allocation calculation for the current fiscal year by calculating FCAS,
need, the 1996 Minimum, and repayments or additions for past over- or
under-funding for each Indian tribe, the undisbursed funds factor shall
be applied as follows:
(a) The undisbursed funds factor applies if an Indian tribe's
initial allocation calculation is $5 million or more and the Indian
tribe has undisbursed IHBG funds in an amount that is greater than the
sum of the prior 3 years' initial allocation calculations.
(b) If subject to paragraph (a) of this section, the Indian tribe's
grant allocation shall be the greater of the initial allocation
calculation minus the amount of undisbursed IHBG funds that exceed the
sum of the prior 3 years' initial allocation calculations, or its 1996
Minimum.
(c) For purposes of this section, ``undisbursed IHBG funds'' means
the amount of IHBG funds allocated to an Indian tribe in HUD's line of
credit control system on October 1 of the fiscal year for which the
allocation is made. For Indian tribes under an umbrella TDHE (a
recipient that has been designated to receive grant amounts by more
than one Indian tribe), if the Indian tribe's initial allocation
calculation is $5 million or more, its undisbursed IHBG funds is the
amount calculated by multiplying the umbrella TDHE's total balance in
HUD's line of credit control system on October 1 of the fiscal year for
which the allocation is made by a percentage based on the Indian
tribe's proportional share of the initial allocation calculation of all
tribes under the umbrella.
(d) Amounts subtracted from an initial allocation calculation under
this section shall be redistributed under the need component among all
Indian tribes not subject to paragraph (a) of this section (while also
retaining the 1996 Minimum).
0
13. Revise appendices A and B of part 1000 to read as follows:
Appendix A to Part 1000--Indian Housing Block Grant Formula Mechanics
This appendix shows the different components of the Indian
Housing Block Grant (IHBG) formula. The following text explains how
each component of the IHBG formula is calculated.
1. The first step in running the IHBG formula is to determine
the amount available for allocation in the Fiscal Year (FY). It is
the sum of:
(a) The FY appropriation for the IHBG program less amounts in
the Appropriations Act mandated for purposes other than the formula
allocation.
(b) The net amount, if any, made available as a result of
corrections for over- or under-allocations in prior FYs.
(c) The amount, if any, made available pursuant to Sec.
1000.536.
(d) The amounts, if any, made available because tribes
voluntarily returned, or did not accept, the amounts allocated to
them in prior FYs, defined as ``carryover'' (see Sec. 1000.329).
2. If there is carryover as defined in Sec. 1000.329, the
amount of carryover up to $3 million, is then held aside for
allocation under the minimum total grant provisions of the formula
(see 11 below).
3. The IHBG formula first calculates the amount each tribe is
allocated under the Formula Current Assisted Stock (FCAS) component
(See Sec. Sec. 1000.310 through 1000.322). The FCAS component is
comprised of two parts, Operating Subsidy (Sec. 1000.316(a)) and
Modernization (Sec. 1000.316(b)).
(a) The Operating Subsidy component is calculated in two steps,
as follows:
(i) Each tribe's counts of Low Rent, Homeownership (Mutual Help
and Turnkey III), and Section 8 units are multiplied by the National
Per Unit Subsidy for operations for that category of unit, which is
a 1996 index for the type of unit that is adjusted for inflation
(see Sec. 1000.302 defining National Per Unit Subsidy). The amounts
are summed to create an initial calculation of the operating subsidy
component.
(ii) The initial operating subsidy component amount is then
adjusted for local area costs, using an adjustment factor called the
AELFMR. The AELFMR factor is calculated for each tribe in three
steps. First, an Allowable Expense Level (AEL) factor is calculated
by dividing the tribe's AEL, a historic per-unit measure of
operating cost, by the national weighted average AEL (see Sec.
1000.302 defining Allowable Expense Level). Second, a Fair Market
Rent (FMR) factor is calculated by dividing the tribe's FMR amount,
an area-specific index published annually by HUD (see Sec. 1000.302
Fair Market Rent factor), by the national weighted average FMR.
Third, an AELFMR factor is created by assigning each tribe the
greater of its AEL or FMR factor, and dividing that figure by the
national weighted average AELFMR. In all cases, when the national
average figure is calculated, tribes are weighted by the amount of
their initial operating subsidy as calculated in 3(a)(i).
(See Sec. 1000.320).
(b) The Modernization component is determined using two methods
depending on the number of public housing units that a tribe's
housing authority operated prior to the Native American Housing and
Self-Determination Act.
(i) For all tribes, the number of Low Rent, Mutual Help, and
Turnkey III units are multiplied by the National Per Unit Subsidy
for modernization from 1996 adjusted for inflation (see Sec.
1000.302 defining National Per Unit Subsidy).
(ii) For Indian tribes with an Indian Housing Authority (IHA)
that owned or operated fewer than 250 units on October 1, 1997, an
alternative modernization component is calculated from the amount of
funds the IHA received under the assistance program authorized by
Section 14 of the 1937 Act (not including funds provided as
emergency assistance) for FYs 1992 through 1997 (see Sec.
1000.316(b)(2)). If this alternative calculation is greater than the
amount calculated in paragraph (a) above, it is used to calculate
the tribe's modernization component.
(iii) The Modernization component is then multiplied by a local
area cost adjustment factor based on the Total Development Cost
(TDC) for the tribe (see Sec. 1000.302) divided by the national
weighted average of all TDCs weighted by each tribe's pre-adjustment
Modernization calculation in paragraph (b)(i) or (ii) above as
applicable.
4. The total amounts calculated under the FCAS component for
each tribe are then added together to determine the national total
amount allocated under the FCAS component. That total is subtracted
from the funds available for allocation less the carryover amount
held aside for allocation under the minimum total grant provision in
Sec. 1000.329. The remainder is the total amount available for
allocation under the need component of the IHBG formula.
5. The first step in calculating need component is identifying
weighted needs variables and adjusting for local area cost
differences.
(a) Need is first calculated using seven factors, where each
factor is a tribe's share of the national totals for each of seven
variables. The data used for the seven variables is described in
Sec. 1000.330. The person count variable is adjusted for
statistically significant undercounts for reservations, trust lands
and remote Alaska and for growth in population since the latest
Decennial Census. The Population Cap provision in Sec. 1000.302
Formula Area (5) is then applied. Needs data are capped if the
American Indian and Alaska Native (AIAN) population counts exceed
twice tribal enrollment unless a tribe
[[Page 83683]]
can demonstrate that it serves more than twice as many non-tribal
members as tribal members, in which case the cap is adjusted upward.
The factors are weighted as set forth in Sec. 1000.324, as
follows:
(i) 22 percent of the amount available for allocation under the
needs component are allocated by the share of the total AIAN
households paying more than 50 percent of their income for housing
and living in each tribe's Formula Area (see Sec. 1000.302);
(ii) 25 percent are allocated by the share of the total AIAN
households living in overcrowded housing and/or without kitchen or
plumbing in each tribe's Formula Area;
(iii) 15 percent are allocated by the share of the total AIAN
households with an annual income less than or equal to 80 percent of
Formula Median Income (see Sec. 1000.302) living in each tribe's
Formula Area less the tribe's number of FCAS.
(iv) 13 percent are allocated by the share of AIAN households
with annual income less than or equal to 30 percent of Formula
Median Income living in each tribe's Formula Area;
(v) 7 percent are allocated by the share of AIAN households with
annual income between 30 percent and 50 percent of Formula Median
Income living in each tribe's Formula Area;
(vi) 7 percent are allocated by the share of AIAN households
with annual income between 50 percent and 80 percent of Formula
Median Income living in each tribe's Formula Area;
(vii) 11 percent are allocated by the share of AIAN persons
living in each tribe's Formula Area.
(b) The result of these calculations for each tribe is then
multiplied by a local area cost adjustment based on the Total
Development Cost for the tribe (see Sec. 1000.302) divided by the
national weighted average of TDCs weighted by each tribe's pre-
adjustment need calculation. (See Sec. 1000.325).
6. Each tribe's initial need allocation amount is then adjusted
under the minimum need allocation provision of Sec. 1000.328.
Tribes that are allocated less than $200,000 under the FCAS
component of the IHBG formula and that certify the presence of any
households at or below 80 percent of median income in their Indian
Housing Plans will be allocated no less than a specified minimum
under the needs component of the formula. The specified minimum
amount shall equal 0.007826 percent of the appropriation for that FY
after set-asides. The increase in funding for the tribes allocated
the minimum need amount is funded by a reallocation from other
tribes whose needs allocation exceeds the minimum need amount. This
is necessary in order to keep the total allocation within the
appropriation level (See Sec. 1000.328).
7. Whenever a new Data Source is first introduced, provision is
made to moderate extreme impacts through phase down adjustments. For
purposes of these adjustments, new data sources (see Sec. 1000.331)
include the initial introduction of the American Community Survey
and 2010 Decennial Census in 2018, and the initial introduction of
the 2020 Decennial Census when it becomes available. Tribes whose
allocation under the need component decrease by more than ten
percent in the first year of introduction will have that decrease
moderated by subsequent adjustments, as required to prevent a drop
of more than ten percent per year in the tribes' needs allocation
attributable solely to the introduction of the New Data Source.
After allocation adjustments are made under Sec. 1000.331 for a FY,
the needs allocation of an Indian tribe whose needs allocation
increased as a result of the introduction of a New Data Source under
Sec. 1000.331 shall be adjusted downward proportionate to its share
of the total increase in funding resulting from the introduction of
a New Data Source to keep the overall needs allocation within
available appropriations.
8. A tribe's preliminary total allocation for a grant is
calculated by summing the amounts calculated under the FCAS and need
components. This amount is compared to how much a tribe received in
FY 1996 for operating subsidy and modernization under the 1937
Housing Act. If a tribe received more in FY 1996 for operating
subsidy and modernization than it does under the IHBG formula
allocation, its preliminary total allocation is adjusted up to the
FY 1996 amount (See Sec. 1000.340(b)). Indian tribes receiving more
under the IHBG formula than in FY 1996 have their grant allocations
adjusted downward to offset the upward adjustments for the other
tribes.
9. The initial allocation amount for the current FY is
calculated by adding any adjustments for over- or under-funding
occurring in prior FYs to the allocation calculated in the previous
step. These adjustments typically result from late reporting of FCAS
changes, or conveyances which occur in a timely manner following the
removal of units from eligibility due to conveyance eligibility.
10. The Undisbursed Funds Factor component is calculated based
on the initial allocation amounts calculated above. Tribes with an
initial allocation of $5 million or more and undisbursed IHBG grant
amounts (the amount available to the tribe in HUD's line of credit
control on October 1 of the FY for which the allocation is being
made) in an amount greater than the sum of the prior 3 years'
initial allocation calculations will have their initial allocation
amount adjusted down by the difference between the tribe's
undisbursed grant amounts and the sum of its prior 3 years' initial
allocation calculations. If this adjustment would bring the tribe
below its FY 1996 minimum (see Sec. 1000.340(b)), then the tribe
will be allocated its FY 1996 minimum. The sum of the adjustments
will be reallocated among the other tribes proportionally under the
need component.
11. A final adjustment is made under Sec. 1000.329 which
allocates available carryover amounts up to $3 million to achieve
minimum total allocations. Tribes that certify in their Indian
Housing Plans the presence of any eligible households at or below 80
percent of median income and whose current FY formula allocation
after the Undisbursed Funds Factor adjustment determined in the
preceding step is less than 0.011547 percent of the FY appropriation
after set-asides, will have their allocation adjusted upwards to
0.011547 percent of the FY appropriation after set-asides, or to a
lesser percentage which can be achieved for all eligible tribes with
available carryover held for this adjustment (see 2 above).
Appendix B to Part 1000--IHBG Block Grant Formula Mechanisms
1. The first step in running the Indian Housing Block Grant
(IHBG) formula is to determine the total amount available for
allocation in the current Fiscal Year (FY).
ALLOCAMT = APPROP + ADJ1 + ADJ2 + CARRYOVER.
Where:
ALLOCAMT = amount available for allocation under the formula.
APPROP = current FY appropriation for the IHBG program less amounts
in the Appropriations Act mandated for purposes other than the
formula allocation.
ADJ1= net amount, if any, made available as a result of corrections
for over-or under allocations in prior FYs.
ADJ2 = amount, if any, made available under Sec. 1000.536.
CARRYOVER = amounts, if any, made available because tribes
voluntarily returned, or did not accept, the amounts allocated to
them in prior FYs.
2. If there is carryover as defined in Sec. 1000.329, the
amount of carryover up to $3 million, is then held aside for
allocation under the minimum total grant provisions of the formula
(see Step 10), then:
MGHOLD = amount set-aside for allocation under minimum total grant
provision.
If CARRYOVER = 0, MGHOLD = 0.
If CARRYOVER > 0 and CARRYOVER < = $3 million, MGHOLD = CARRYOVER.
If CARRYOVER > $3 million, MGHOLD = $3 million.
3. The FCAS component is calculated first. FCAS consists of two
parts, Operating Subsidy (OPSUB) and Modernization (MOD), such that:
FCAS = OPSUB + MOD.
a. OPSUB is calculated in two steps, as follows:
(i) First, the number of Low-Rent, Section 8 and homeownership
units are multiplied by the applicable national per unit subsidy
(Sec. 1000.302 National Per Unit Subsidy). The amounts are summed
to create an initial calculation of the Operating Subsidy component.
OPSUB1 = [LR * LRSUB] + [(MH + TK) * HOSUB] + [S8 * S8SUB].
Where:
OPSUB1 = initial calculation of Operating Subsidy component.
LR = number of Low-Rent units.
LRSUB = national per unit subsidy for Low-Rent units ($2,440 * INF).
INF = adjustment for inflation since 1995, as determined by the
Consumer Price Index for housing.
MH + TK = number of Mutual Help and Turnkey III units.
HOSUB = national per unit subsidy for Homeownership units ($528 *
INF).
[[Page 83684]]
S8 = number of Section 8 units.
S8SUB = national per unit subsidy for Section 8 units = ($3,625 *
INF).
(ii) The initial Operating Subsidy component amount is then
adjusted for local area costs, using an adjustment factor called the
AELFMR. The AELFMR factor is calculated for each tribe in three
steps. First, an AEL factor is calculated by dividing the tribe's
Allowable Expense Level (AEL), a historic per-unit measure of
operating cost, by the national weighted average AEL (see Sec.
1000.302 defining Allowable Expense Level)
AEL FACTOR = AEL/NAEL.
Where:
AEL = local Allowable Expense Level.
NAEL = national weighted average for AEL, where the weight is a
tribe's initial calculation of operating subsidy.
Second, an FMR factor is calculated by dividing the tribe's Fair
Market Rent amount (FMR), an area-specific index published annually
by HUD (see Sec. 1000.302 Fair Market Rent factor), by the national
weighted average FMR.
FMR FACTOR = FMR/NFMR.
Where:
FMR= local Fair Market Rent.
NFMR = national weighted average for FMR, where the weight is a
tribe's initial calculation of operating subsidy.
Third, an AELFMR factor is created by assigning each tribe the
greater of its AEL or FMR factor, and dividing that figure by the
national weighted average AELFMR. In all cases, when the national
average figure is calculated, tribes are weighted by the amount of
their initial operating subsidy as calculated in 3(a)(i) above. (See
Sec. 1000.320).
AELFMRFACTOR = final local area cost adjustment factor (AELFACTOR or
FMRFACTOR)/NAELFMR.
Where:
NAELFMR = national weighted average for greater of AEL Factor or FMR
factor, where weight is a tribe's initial calculation of operating
subsidy
Finally, the AELFMR factor is used to adjust the initial
operating subsidy calculation for differences in local area costs.
OPSUB = OPSUB1 * AELFMRFACTOR.
Where:
OPSUB = Operating Subsidy component after adjustment for local cost
differences.
b. The modernization component, MOD, is calculated by two
different methods, depending on whether the tribe had an Indian
housing authority (IHA) that owned or operated more than 250 public
housing units on October 1, 1997.
(i) MOD1 is calculated for all tribes and considers the number
of Low-Rent, and Mutual Help and Turnkey III FCAS units. Each of
these is adjusted by the national per-unit modernization subsidy
MOD1 = [LR + MH + TK] * MODPU.
Where:
LR = number of Low-Rent units.
MH = number of Mutual Help units.
TK = number of Turnkey III units.
MODPU = national per-unit amount for modernization in 1996 adjusted
for inflation ($1,974 * INF).
INF = adjustment for inflation since 1995, as determined by the
Consumer Price Index for housing.
(ii) MODAVG is calculated only for tribes that had an IHA that
owned or operated fewer than 250 public housing units on October 1,
1997, as the annual average amount they received for FYs 1992
through 1997 under the assistance program authorized by section 14
of the 1937 Act (not including emergency assistance). If this
alternative calculation is greater than the amount calculated in
(i), it is used to calculate the tribe's modernization component.
MODAVG = Average (FY 1992 to FY 1997) amount received by Section 14
of the 1937 Act.
If MODAVG > MOD1, MOD1 = MODAVG.
c. The modernization calculation is adjusted for local area
costs:
MOD = MOD1 * (TDC/NTDC).
Where:
TDC = Local Total Development Costs defined in Sec. 1000.302.
NTDC = weighted national average for TDC, where the weight is the
initial calculation of modernization amount of tribe with CAS.
4. Now that calculation for FCAS is complete, the amount
allocated using the need component of the formula can be determined:
NEEDALLOCAMT = ALLOCAMT - MGHOLD - NATCAS.
Where:
NEEDALLOCAMT = amount allocated using the need component of the
formula.
ALLOCAMT = amount available for allocation under the formula.
MGHOLD = amount held for allocation under minimum total grant
provision.
NATCAS = national summation of FCAS allocation for all tribes.
5. The first step in calculating needs is identifying weighted
needs variables and adjusting for local area cost differences.
a. The basic needs calculation uses seven weighted criteria
based on population and housing data in a tribe's Formula Area or
share of Formula Area if Formula Areas overlap (see Sec. 1000.302
Formula Area and Sec. 1000.326) to allocate the funds available for
the needs component. The person count variable is adjusted for
statistically significant undercounts for reservations, trust lands
and remote Alaska and for changes in population since the latest
Decennial Census.
PERADJ = PER * UCFACTOR * POPCHGFACTOR.
Where:
PER = American Indian and Alaskan Native (AIAN) persons as reported
in the most recent Decennial Census.
UCFACTOR= 1+ the percentage undercount identified by the Census by
type of land (in 2010 1.0488 for reservation and trust lands only
and assumed also to apply to remote Alaska).
POPCHGFACTOR = the ratio of the most recent AIAN Census population
estimate for county to the AIAN count for county from the Decennial
Census.
The Population Cap provision in Sec. 1000.302 Formula Area (5)
is then applied. Needs data are capped if AIAN population counts
exceed twice tribal enrollment unless a tribe can demonstrate that
it serves more than twice as many non-tribal members as tribal
members, in which case the cap is adjusted upward.
POPCAPTEST=1 if PERADJ > TEmultiplier * TE
If POPCAPTEST=1, (tribes subject to Population Cap) then:
PER = TEmultiplier * TE
POPCAPADJF = PER/PERADJ
For tribes NOT subject to Population Cap,
PER = PERADJ and POPCAPADJF = 1.
Where:
POPCAPTEST = an indicator showing whether a tribe's needs data must
be adjusted downward because its Formula Area population is
disproportionally large relative to tribe's enrollment,
TEmultiplier = 2, or a larger factor if justified by tribe on annual
basis.
TE = Tribal enrollment.
POPCAPADJF = factor used to adjust household needs variables.
An initial calculation of the needs component is then calculated
by determining each tribe's share of national totals on each
variable, and applying weights to the variables as specified in
regulation.
BASENEED = [(0.11 * (PER)/NPER) + (0.13 * HHLE30/NHHLE30) + (0.07 *
HH30T50/NHH30T50) + (0.07 * HH50T80/NHH50T80) + (0.25 * OCRPR/
NOCRPR) + (0.22 * SCBTOT/NSCBTOT) + (0.15 * HOUSHOR/NHOUSHOR)] *
NEEDALLOCAMT.
Where:
PER = count of AIAN persons after adjustments.
NPER = national total of PER.
HHLE30 = count of AIAN households less than 30% of formula median
income multiplied by POPCAPADJF.
NHHLE30 = national total of HHLE30.
HH30T50 = count of AIAN households 30% to 50% of formula median
income multiplied by POPCAPADJF.
NHH30T50 = national total of HH30T50.
HH50T80 = count of AIAN households 50% to 80% of formula median
income multiplied by POPCAPADJF.
NHH50T80 = national total of HH50T80.
OCRPR = count of AIAN households crowded or without complete kitchen
or plumbing multiplied by POPCAPADJF.
NOCRPR = national total of OCRPR.
SCBTOT = count of AIAN households paying more than 50% of their
income for housing multiplied by POPCAPADJF.
NSCBTOT = national total SCBTOT.
HOUSHOR = a measure of housing shortage calculated as (HHLE30 +
HH30T50 + HH50T80)--(LR + MH + TKIII)
NHOUSHOR = national total of HOUSHOR.
NEEDALLOCAMT = amount allocated using the need component of the
formula.
b. The basic needs calculation is adjusted to reflect
differences in local area costs.
NEED = BASENEED * (TDC/NATDC).
[[Page 83685]]
Where:
TDC = Local Total Development Costs defined in Sec. 1000.302.
NATDC = average for TDC for all tribes weighted using BASENEED.
6. The need allocation computed above is adjusted to take into
account the minimum needs provision. Tribes allocated less than
$200,000 under the FCAS component of the IHBG formula and that
certify the presence of any households at or below 80 percent of
median income in their Indian Housing Plan are allocated an
additional amount so their needs allocation equals 0.007826 percent
of the available appropriations for that FY after set-asides.
MINNEED = APPROP * 0.00007826.
Where:
APPROP = current FY appropriation for the IHBG program less amounts
in the Appropriations Act mandated for purposes other than the
formula allocation.
If in the first need computation, a qualified tribe is allocated
less than the minimum needs funding level, its need allocation will
go up. Other tribes whose needs allocations are greater than the
minimum needs amount will have their allocations adjusted downward
to keep the total allocation within available funds:
If NEED < MINNEED and FCAS < $200,000 and income-based need has been
identified in a tribe's IHP, then NEED1 = MINNEED.
If NEED > = MINNEED, then NEED1 = NEED1 - {UNDERMIN$ * [(NEED1 -
MINNEED)/OVERMIN$]{time} .
Where:
MINNEED = minimum needs amount.
UNDERMIN$ = for all tribes qualifying for an increase under the
minimum needs provision, sum of the differences between MINNEED and
NEED1.
OVERMIN$ = for all tribes with needs allocations larger than the
minimum needs amount, the sum of the difference between NEED1 and
MINNEED.
7. Whenever a new data source (see Sec. 1000.331) is first
introduced, provision is made to moderate extreme impacts through
phase down adjustments. Tribes whose allocation under the need
component decrease by more than ten percent in the first year of
introduction will have that decrease moderated by subsequent
adjustments, as required to prevent a drop of more than ten percent
per year in the tribes' needs allocation attributable solely to the
introduction of the new data source. A phase down adjustment
schedule is calculated, containing adjustment amounts
(PDADJn) for the first and all subsequent FYs, based on
the amount allocated to a tribe under the need component in the FY
prior to the introduction of the new data source using the old data
source. That is,
If NEED1NewDS < 0.9 * NEED1OldDS, then a tribe qualifies for a phase
down adjustment (PDADJ) (see Sec. 1000.331(c)).
PDADJn = (((0.9\n\) * NEED1OldDS)--NEED1NewDS), where n =
1 to [infin] provided PDADJn > 0 for at least one tribe.
Where:
NEED1NewDS = the amount the tribe would have received in the FY
prior to the introduction of the new data source had the new data
source been used to determine their need component in that FY.
NEED1OldDS = the amount a tribe actually received in the FY prior to
the introduction of the new data source based on the old data
source.
PDADJn = the size of the adjustment that qualifying
tribes will receive in each year n, where the n represents the
number of years elapsed since the introduction of the new data
source and is equal to one in the first year.
After allocation adjustments are made under Sec. 1000.331 for a
FY, the needs allocation of an Indian tribe whose needs allocation
increased as a result of the introduction of a new data source shall
be adjusted downward proportionate to its share of the total
increase in funding resulting from the introduction of a new data
source to keep the overall need component within available
appropriations. For each tribe which benefitted from the
introduction of the new data source, their share of the total gain
is calculated and that share is used to determine the amount of
contribution they will make in each year following the introduction
of the new data source to allow the phase down adjustments to be
made without exceeding the amount available for allocation.
If NEED1NewDS > NEED1OldDS, then tribe gained from the introduction
of the new data source and contributes a portion of their gain to
offset the phase down adjustments.
GAINSHR = (NEED1NewDS -NEED1OldDS)/TOTGAINYR1.
CONTRIBn = GAINSHR * TOTPDADJn,
Where:
NEEDd1NewDS = the amount the tribe would have received in the FY
prior to the of introduction of the new data source had the new data
source been used to determine their needs funding in that FY.
NEED1OldDS = the amount a tribe actually received in the FY prior to
the introduction the new data source based on the old data source.
GAINSHR = a tribe's share of the total gains realized by all tribes
that benefitted from the introduction of the new data source.
TOTGAINYR1 = the sum of the amounts that tribes gain from the
introduction of the new data source in year one.
CONTRIBn = the size of the contribution that non-
qualifying tribes give in each year n, where the n represents the
number of years elapsed since the introduction of the new data
source and equal to one in the first year.
TOTPDADJn = the total amount in each year n required to
cover the cost of phase down adjustments in that year, i.e. S
PDADJn.
The initial needs allocation for each tribe is adjusted based on
the phase down adjustments and contribution amounts in the phase
down schedule.
NEED1PD = NEED1 +_PDADJn - CONTRIBn.
Where:
NEED1PD = a tribe's allocation under the need component after
applying the phase down adjustment schedule.
NEED1= the initial calculation of need in the current FY from step 6
above.
PDADJn = the size of the adjustment that qualifying
tribes will receive in each year n, where the n represents the
number of years elapsed since the introduction of the new data
source and is equal to one in the first year.
CONTRIBn = the size of the contribution that non-
qualifying tribes give in each year n, where the n represents the
number of years elapsed since the introduction of the new data
source and equal to one in the first year.
PDADJn and CONTRIBn as calculated in the
initial phase down adjustment schedule may have to be adjusted
downward in subsequent FYs if the total amount available for
allocation under the needs Component (i.e. NEEDALLOCAMT in Step 4)
is lower than the amount available for that purpose in the FY prior
to the introduction of the new data source. If so, both
PDADJn and CONTRIBn will be reduced by a
factor which is the ratio of NEEDALLOCAMT in current FY to
NEEDALLOCAMT in the year prior to the introduction of the new data
source.
Furthermore, when the 2020 Decennial Census or other new data
source is introduced, a new phase down adjustment schedule will be
calculated in a similar manner as that was calculated for FY 2018.
8. A tribe's preliminary total allocation is calculated by
summing the amounts calculated under the FCAS and need components
that will serve as the basis for further adjustments in accordance
with Sec. 1000.340.
GRANT1 = FCAS + NEED1PD.
Where:
GRANT1 = preliminary total allocation before applying 1996 Operating
Subsidy and Modernization minimum funding (see Step 8), Undisbursed
Funds Factor (see Step 9) and Minimum Grant provision (see Step 10).
FCAS = Formula Current Assisted Stock component equal to OPSUB +
MOD.
NEED1PD = the Tribe's needs allocation after applying the phase down
adjustment schedule.
GRANT1 is compared to how much a tribe received in FY 1996 for
operating subsidy and modernization under the 1937 Housing Act. If a
tribe received more in FY 1996 for operating subsidy and
modernization than its IHBG formula allocation, its preliminary
total allocation is adjusted up to the FY 1996 amount (See Sec.
1000.340(b)). Indian tribes receiving more under the IHBG formula
than in FY 1996 have their grant allocations adjusted downward to
offset the upward adjustment for the other tribes.
TEST = GRANT1 - OPMOD96.
If TEST is < = than 0, then GRANT2 = OPMOD96.
If TEST is greater than 0 and GRANT1 > MINNEED, then:
GRANT2 = GRANT1 - [UNDER1996 * (TEST/OVER1996)].
[[Page 83686]]
Where:
TEST = variable to decide whether tribes qualify for adjustments
under 1996 minimum funding.
GRANT1 = preliminary total allocation before applying 1996 Operating
Subsidy and Modernization minimum funding (see Step 8), Undisbursed
Funds Factor (see Step 9) and Minimum Grant provision (see Step 10).
OPMOD96 = funding received by tribe in FY 1996 for Operating Subsidy
and Modernization.
MINNEED = minimum needs amount.
UNDER1996 = for all tribes with TEST less than 0, sum of the
absolute value of TEST.
OVER1996 = for all tribes with TEST greater than 0, sum of TEST.
GRANT2 = preliminary total allocation after applying 1996 Operating
Subsidy and Modernization minimum funding (see Step 8) but before
applying the Undisbursed Funds Factor (see Step 9) and Minimum Grant
provision (see Step 10).
9. The initial allocation amount for the current FY is
calculated by adding any adjustments for over- or under-funding
occurring in prior FYs to the allocation calculated in the previous
step. These adjustments typically result from late reporting of FCAS
changes, or conveyances.
REPGRANT = GRANT2 + ADJUST1.
Where:
REPGRANT = Initial Allocation Amount in current FY (see Sec.
1000.342).
GRANT2 = preliminary total allocation after applying 1996 Operating
Subsidy and Modernization minimum funding (see Step 8) but before
applying the Undisbursed Funds Factor (see Step 9) and Minimum Grant
provision (see Step 10).
ADJUST1 = adjustments for over- or under-funding occurring in prior
FYs.
10. The Undisbursed Funds Factor is determined by subtracting the
sum of each tribe's Initial Allocation Amount for the prior three
FYs from the IHBG amounts in HUD's Line of Credit Control System
(LOCCS) on October 1 of the FY for which the new allocation is being
determined. If the undisbursed funds factor is > $0 and the tribe's
initial allocation for the FY exceeds $5 million, its final
allocation will be the initial allocation minus the Undisbursed
Funds Factor or its 1996 minimum, whichever is greater. Reductions
to the initial allocation amounts due to the Undisbursed Funds
Factor are summed and redistributed to other tribes in proportion to
their initial needs allocation, NEED1PD, calculated above.
If REPGRANT > = $5 MILLION and UNDISB$ > (REPGRANTYR1 + REPGRANTYR2
+ REPGRANTYR3), then UDFFtest = 1.
Where:
REPGRANT = Initial Allocation Amount in current FY.
REPGRANTYR1 = Initial Allocation Amount in one year prior to current
FY.
REPGRANTYR2 = Initial Allocation Amount in two years prior to
current FY.
REPGRANTYR3 = Initial Allocation Amount in three years prior to
current FY.
UDFFTest = is an indicator as to whether the tribe will give up a
portion of its needs allocation due to an excessive amount of
undisbursed funds.
For tribes whose UDFFtest = 1, a reduction will occur as follows:
REPGRANTaftUDFF = (GRANT2 - (UNDISB$ - (REPGRANTYR1 + REPGRANTYR2 +
REPGRANTYR3))
Except if, OPMOD96 > (GRANT2 - (UNDISB$ - (REPGRANTYR + REPGRANTYR2
+ REPGRANTYR3)) then, REPGRANTaftUDFF = OPMOD96.
Where:
REPGRANTaftUDFF = Initial Allocation Amount in current FY adjusted
for the Undisbursed Funds Factor.
GRANT2 = preliminary total allocation after applying 1996 Operating
Subsidy and Modernization minimum funding (see Step 8) but before
applying the Undisbursed Funds Factor (see Step 9) and Minimum Grant
provision (see Step 10).
UNDISB$ = amount in HUD's LOCCS on October 1 of the FY.
REPGRANTYR1 = Initial Allocation Amount in one year prior to current
FY.
REPGRANTYR2 = Initial Allocation Amount in two years prior to
current FY.
REPGRANTYR3 = Initial Allocation Amount in three years prior to
current FY.
OPMOD96 = funding received by tribe in FY 1996 for Operating Subsidy
and Modernization.
So the UDFFadj = REPGRANTaftUDFF - GRANT2 and UDFFadjTOT=
Absolute value of the sum of UDFF adjustments for tribes subject to
reduction.
If UDFFtest is not equal to 1, tribes receive a portion of the
funds recovered under the UDFF provision based on their share of
total needs excluding any tribes with UDFFtest = 1. For these
tribes, then:
UDFFadj = (NEED1PD/S Need1PD) * UDFFadjTOT).
REPGRANTaftUDFF = REPGRANT + UDFFadj.
Where:
UDFFadj = amount of the Undisbursed Fund Factor adjustments.
Negative amount represents excess undisbursed funds. Positive
represents amounts being transferred to other tribes without excess
undisbursed funds.
NEED1PD = the Tribe's needs allocation after applying the phase down
adjustment schedule.
UDFFadjTOT = absolute value of the sum of Undisbursed Fund Factor
adjustments for tribes that meet the criteria for reduction and is
equal to the sum available for redistribution among other tribes
based on their initial needs allocation.
REPGRANTaftUDFF = Initial Allocation Amount in current FY adjusted
for the Undisbursed Funds Factor.
REPGRANT = Initial Allocation Amount in current FY.
11. A final adjustment is made under Sec. 1000.329 which
allocates available carryover amounts up to $3 million to achieve
minimum total allocations. Tribes that certify in their Indian
Housing Plans the presence of any eligible households at or below 80
percent of median income and whose total allocation determined in
the preceding step is less than 0.011547 percent of the FY
appropriation after set-asides, will have their allocation adjusted
upwards to 0.011547 percent of the FY appropriation after set-
asides, or to a lesser percentage which can be achieved for all
eligible tribes with available carryover funds set-aside for this
purpose.
MINGRANT = APPROP * 0.0001547.
Where:
APPROP = current FY appropriation for the IHBG program less amounts
in the Appropriations Act mandated for purposes other than the
formula allocation.
If (GRANT2 + UDFFADJ) < MINGRANT and income-based need has been
identified in a tribe's IHP, then tribe qualifies for MINGRANTADJ.
For Tribes that qualify, calculate:
MINGRTADJTEST = MINGRANT--(GRANT2 + UDFFADJ).
If the Sum for all tribes of MINGRTADJTEST < MGHOLD, then:
MINGRANTADJ = MINGRTADJTEST.
If the Sum for all tribes of MINGRANTADJTEST > MGHOLD, then:
MINGRANTADJ = MINGRANTADJTEST * (MGHOLD/S MINGRANTADJ)
Where:
GRANT2 is the approximate grant allocation in any given year for any
given tribe.
UDFFADJ = amount of UDFF adjustment.
MINGRANT = Minimum total allocation established in Sec. 1000.329.
MINGRANTADJTEST = amount required to bring all qualifying tribes'
allocations up to the minimum total allocation amount. This amount
can then be compared.
MGHOLD = amount set-aside for allocation under minimum total grant
provision (see Step 2).
MINGRANTADJ = actual amount of the minimum grant adjustment that can
be accommodated with the amount set aside from carryover for this
purpose.
12. A tribe's final allocation consists of the initial current
FY formula allocation with three adjustments.
FINALALLOCATION = GRANT2 + ADJUST1 + UDFFadj + MINGRANTADJ
Where:
FINALALLOCATION = total amount a tribe is eligible to receive as a
grant in the current FY.
GRANT2 = preliminary total allocation after applying 1996 Operating
Subsidy and Modernization minimum funding (see Step 8) but before
applying the Undisbursed Funds Factor (see Step 9) and Minimum Grant
provision (see Step 10).
ADJUST1 = adjustments for over- or under-funding occurring in prior
FYs.
UDFFadj = amount of the Undisbursed Fund Factor adjustments.
Negative amount represents excess undisbursed funds.
[[Page 83687]]
Positive represents amounts being transferred to other tribes
without excess undisbursed funds.
MINGRANTADJ = actual amount of the minimum grant adjustment that can
be accommodated with the amount set aside from carryover for this
purpose.
Dated: November 4, 2016.
Lourdes Castro Ramirez,
Principal Deputy Assistant, Secretary for Public and Indian Housing.
Nani A. Coloretti,
Deputy Secretary.
[FR Doc. 2016-27208 Filed 11-21-16; 8:45 am]
BILLING CODE 4210-67-P