[Federal Register Volume 60, Number 77 (Friday, April 21, 1995)]
[Proposed Rules]
[Pages 19994-19997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9914]
[[Page 19993]]
_______________________________________________________________________
Part III
Department of Health and Human Services
_______________________________________________________________________
Administration for Children and Families
_______________________________________________________________________
45 CFR Part 1336
Native American Programs; Proposed Rule
Federal Register / Vol. 60, No 77 / Friday, April 21, 1995 / Proposed
Rules
[[Page 19994]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1336
RIN 0970-AB37
Native American Programs
AGENCY: Administration for Native Americans, Administration for
Children and Families, HHS.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: On September 30, 1992, the Congress passed the Older Americans
Act Amendments of 1992, amending the Native American Programs Act of
1974. In accordance with these amendments, the Administration for
Native Americans (ANA) is proposing to amend 45 CFR part 1336 to
incorporate an appeals procedure for ANA ineligible applications. This
action affords the applicants in ANA grant program announcement areas
the opportunity to appeal the rejection of an application based on a
finding that either the applicant or the proposed activities are
ineligible for funding. A successful appeal would lead to
reconsideration of the application in the next cycle of grant proposals
following the Assistant Secretary's determination to uphold the appeal.
It does not guarantee ANA approval for grant funding.
dates: Interested parties are invited to comment on these proposed
amendments. Comments must be submitted on or before June 20, 1995.
addresses: Submit comments on the proposed rule, in duplicate, to:
Administration for Native Americans, ATTN: INELIGIBILITY APPEAL, Room
348-F, HHH Bldg., 200 Independence Avenue, SW., Washington, DC 20201-
0001.
Two weeks after close of the comment period, comments and letters
will be available for public inspection in Room 348-F, Hubert H.
Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201,
Monday through Friday, 7:30 a.m. to 3:30 p.m., telephone (202) 690-
7730.
for further information contact: Sharon McCully (202) 690-5780.
SUPPLEMENTARY INFORMATION:
I. Program Description
In 1974, the Native American Programs Act (the Act) was enacted as
Title VIII of the Economic Opportunity Act of 1964, (Pub. L. 93-644)
(42 U.S.C. 2991a et seq.) to promote the goal of social and economic
self-sufficiency for American Indians, Alaska Natives, and Native
Hawaiians. The legislation was subsequently amended by the Older
Americans Act Amendments of 1987 (Pub. L. 100-175), which extended
eligibility to Native American Pacific Islanders (including American
Samoan Natives), and the Indian Environmental Regulatory Enhancement
Act of 1990 (Pub. L. 101-408). Most recently it was amended by the
Older Americans Act Amendments of 1992, (Pub. L. 102-375); the Native
American Languages Act of 1992, (Pub. L. 102-524); Technical Amendments
to Certain Indian Statutes, 1992, (Pub. L. 102-497); and the Older
Americans Act Technical Amendments of 1993 (Pub. L. 103-171).
Background
Financial assistance provided by ANA, under the Act, is designed to
promote the goal of social and economic self-sufficiency for American
Indians, Alaska Natives, Native Hawaiians, and Native American Pacific
Islanders through programs and projects that: (1) Advance locally
developed social and economic development strategies (SEDS) and
strengthen local governance capabilities as authorized by Sec. 803(a);
(2) preserve Native American languages authorized by Sec. 803C; (3)
improve the capability of the governing body of the Indian tribe to
regulate environmental quality authorized by Sec. 803(d); and (4)
mitigate the environmental impacts to Indian lands due to Department of
Defense activities. The funding for the mitigation of environmental
impacts to Indian lands due to Department of Defense activities is
authorized by Sec. 809A of the Department of Defense Appropriations
Act, 1994 (Pub. L. 103-139). The Act also authorizes a Hawaiian Loan
Program in Sec. 803A. Under this program, ANA makes grants to the
Office of Hawaiian Affairs of the State of Hawaii to support a
revolving loan fund. Because of the unique nature of this program an
appeal is unlikely to arise under it, and for this reason ANA has not
addressed the question of eligibility of organizations or activities
under this program in the regulations.
II. Discussion of Proposed Regulations
These proposed regulations are to establish new procedures mandated
by reauthorization legislation, the Older Americans Act Amendments of
1992 (Pub. L. 102-375, Title VIII, Subtitle C; ``Native American
Programs Act Amendments of 1992''). The proposed regulations would add
three new sections to 45 CFR part 1336, subpart C, that would list the
categories of eligible applicants and activities that are ineligible,
Sec. 1336.33, requirements for the notice of ineligibility,
Sec. 1336.34, and the procedures for appeal of such a determination,
Sec. 1336.35.
A successful appeal under Sec. 1336.35 would lead to
reconsideration of the application in the next cycle of grant
proposals. It does not guarantee ANA approval for grant funding.
Furthermore, the decision that an application is deficient by ANA prior
to competitive panel review for reasons other than applicant
ineligibility or the ineligibility of proposed activities is not
appealable under this section and in accordance with section 810(b) of
the Act. The decision not to fund an application because it fails the
competitive review panel also is not appealable under this section.
Section-by-Section Discussion of the Proposed Changes
In subpart C, part 1336, Native American Projects, we are proposing
to include a new Sec. 1336.33, Ineligible applicants and proposed
activities which are ineligible. This section lists the categories of
organizations which are eligible for four of the grant programs
administered by ANA. An organization not within the categories
specified for a program is not eligible to receive funding under that
program.
The provision also lists activities which, based upon its
experience in administering the program, ANA has declined to fund in
the past. The Agency has found that these activities are by their
nature of limited or no value in furthering the goals of the respective
grant programs administered by ANA.
Paragraph (a)(1) lists categories of applicants eligible to apply
for SEDS and Preservation and Enhancement of Native American Language
grants. The categories are in accordance with Section 803(a) of the
Native American Programs Act, as amended, and Section 803C, which
provides that organizations eligible under Section 803(a) are also
eligible for grants under the Native American languages program. The
following are some examples of the eligible organizations listed in
paragraph (a)(1): Federally recognized Indian Tribes; urban Indian
Centers; consortia of Indian Tribes; Alaska Native villages as defined
by the Alaska Native Claims Settlement Act (ANCSA) and/or nonprofit
village consortia; public and nonprofit private agencies serving native
people from Guam, American Samoa, Palau, or the Commonwealth of the
Northern Mariana Islands; public and nonprofit private agencies serving
Native Hawaiians; and incorporated non-Federally recognized Tribes.
[[Page 19995]]
Under the SEDS program, applications submitted by organizations
applying to serve members of a Federally recognized tribe must be
submitted through the tribe. This interpretation of the requirements of
section 803(a) of the Act reflects the legal principle that Indian
tribes possess inherent governmental power over all internal affairs.
See, for example, Merrion v. Jicarilla Apache Tribe, 455 U.S. 130
(1982) (Tribe has inherent power to impose severance tax on mining
activities). Attributes of sovereign authority of tribes extends over
both their members and territory, except where that authority has been
withdrawn or modified by treaty or Federal statute. Iowa Mutual
Insurance Co. v. LaPlante, 480 U.S. 9, 14 (1987). Tribes generally
retain sovereignty by way of tribal self-government and control over
other aspects of its internal affairs. Brendale v. Confederated Tribes
and Band of Yakima, 109 S. Ct. 2994 (1989). When the eligibility
requirements of section 803(a) are applied to organizations serving
members of a Federally recognized tribe through activities within its
jurisdiction it is appropriate to interpret the requirements in light
of the principle that tribes have an inherent authority over their
internal affairs and over their members. To do otherwise would
undermine the ability of tribes to exercise that authority. It is also
particularly important in such circumstances to have the support of the
tribal government since the grant is intended to further the social and
economic development of the tribe and its members.
The requirements of paragraph (a)(1) set forth ANA's interpretation
of the eligibility requirements of section 803(a) of the Act. The
Agency proposes to remove 45 CFR 1336.30(a) which restates the language
of the statute. Continued use of this provision in the regulations
would cause confusion. In addition, ANA is removing 45 CFR 1336.30(c)
which provides that projects in American Samoa, Guam and the Northern
Mariana Islands receive funding under Sec. 803 ``subject to the
availability of funds.'' This provision was based upon a requirement in
section 803(a) which was deleted in 1992 by Public Law 102-497.
Paragraph (a)(2) lists 5 categories of applicants eligible to apply
for funds provided by the Department of Defense (DoD) and ANA for the
purpose of mitigating environmental impacts on Indian Lands related to
DoD activities. This list was derived from the Environmental Mitigation
Program Announcement as published in the Federal Register: Availability
of Financial Assistance; (58 FR 69106; December 29, 1993). ANA does not
interpret Section 810(b) of the Act as requiring that applicants under
the DoD program have a right to appeal rulings of ineligibility;
however the Agency has decided as a matter of policy to include this
program under the regulations.
Paragraph (a)(3) lists 5 categories of applicants eligible to apply
for funds for the improvement of the capability of tribal governing
bodies to regulate environmental quality. The eligible categories of
organizations are: (1) Federally recognized Indian Tribes; (2)
incorporated non-Federally and State recognized Tribes; (3) consortia
of Indian Tribes; (4) Alaska Native villages as defined by the Alaska
Native Claims Settlement Act (ANCSA) and/or nonprofit village
consortia; (5) Tribal governing bodies (Indian Reorganization Act (IRA)
or traditional councils) as recognized by the Bureau of Indian Affairs.
The list of 5 categories are derived from the recent program
announcement: Availability of Financial Assistance for Improving the
Capability of Indian Tribal Governments to Regulate Environmental
Quality (59 FR 16650, April 7, 1994).
The regulations do not include a list of organizations eligible for
grants authorized by Sec. 805 of the Act, which authorizes grants for
research, demonstration and pilot projects. ANA is not currently
awarding grants under this provision, nor does it have plans to do so.
If, at some point in the future, it does issue an announcement for
funding under section 805, the Agency will state which categories of
organizations and the types of activities are eligible for funding.
Applicants for funding under Sec. 805 which wish to appeal the
rejection of an application based on a finding that either the
applicant or the proposed activities are ineligible for funding will be
able to do so by submitting an appeal as provided for by the proposed
45 CFR 1336.35.
Paragraph (b) provides a nonexclusive list of 7 activities that are
ineligible for funding under programs authorized by the Native American
Programs Act of 1974. (It is impossible to list all activities that
would be considered eligible.) With the exception of one activity, the
purchase of real estate, which is prohibited by law, the remaining 6
listed are derived from ANA's past experiences in managing grants and
working with organizations, both public and private. Several examples
of these are:
(a) Projects in which a grantee would provide training and/or
technical assistance (T/TA) to other tribes or Native American
organizations (``third party T/TA''). However, the purchase of T/TA
by a grantee for its own use or for its members' use (as in the case
of a consortium), where T/TA is necessary to carry out project
objectives, is acceptable. Third party T/TA is not an eligible
activity because ANA believes it is inefficient to fund
organizations which would otherwise be able to apply directly to ANA
for TA funding;
(b) Projects that request funds for feasibility studies,
business plans, marketing plans or written materials, such as
manuals, that are not an essential part of the applicant's SEDS
long-range development plan. ANA is not interested in funding ``wish
lists'' of business possibilities. This policy reflects ANA's belief
that the limited amount of funds available to the Agency is better
used to support activities which directly affect the well-being of
the members of Native American communities;
(c) The support of on-going social service delivery programs or
the expansion, or continuation, of existing social service delivery
programs. This area is covered by other Federal programs and would
result in a duplicative effort by ANA; and
(d) Core administration functions, or other activities, that
essentially support only the applicant's on-going administrative
functions. ANA funds are used for specific products that become
self-sustaining and not for the on-going administration of Tribes or
organizations. This policy reflects ANA's goal of husbanding the
scare resources available to it.
In Sec. 1336.34, Notice of ineligibility, we propose that upon a
finding by the Commissioner that an organization which has applied for
funding is ineligible or that the activities proposed by an
organization are ineligible, the Commissioner shall inform the
applicant, by certified letter, of the decision. The notice must
include a statement of the legal and factual grounds for the finding
concerning eligibility, a copy of these regulations, and the statement
regarding how to appeal the decision.
In Sec. 1336.35, Appeal of ineligibility, we propose to establish
the procedures an applicant must follow when seeking to appeal the ANA
Commissioner's determination that an applicant, or proposed activities,
are rejected on grounds of ineligibility. This section describes the
steps that apply when seeking such an appeal. In accordance with the
Native Americans Programs Act, Section 810(b), the applicant may make
an appeal to the Secretary for review of the determination of
ineligibility. The Secretary has delegated the authority for review of
appeals made under section 810(b) to the Assistant Secretary for
Children and Families. Under this section, the applicant has 30 days
following receipt of ineligibility notification to appeal, in writing,
the Commissioner's ruling. The [[Page 19996]] appeal must clearly
identify the issues. The Assistant Secretary may appoint an individual
who is not a member of the staff of the Administration for Native
Americans to develop the record in the appeal and to recommend a
decision. The Assistant Secretary or his or her designee shall give the
Commissioner 21 days to respond to the applicant's submission and allow
the applicant to respond to the Commissioner's submission within 10
days of its receipt by the applicant. The individual presiding over the
appeal may request the parties to submit additional information within
a specified time period before closing the record in the appeal. The
Assistant Secretary will provide a final written decision within 30
days of the closing of the record. If a determination is made by the
Assistant Secretary that the applicant or application is eligible, as
required by law, the eligibility will not take effect until the next
cycle of grant proposals are considered by ANA.
III. Impact Analysis
Executive Order 12866
Executive Order 12866 requires that regulations be drafted to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department has determined that this
rule is consistent with these priorities and principles.
The NPRM amends the current rules to establish an appeal procedure
authorized by the Older Americans Act Amendments of 1992. It adds three
new sections to 45 CFR part 1336 that list the categories of eligible
applicants and ineligible activities, set forth requirements for the
notice of ineligibility, and establish procedures on how to appeal
determinations of ineligibility made by the Commissioner, ANA. The NPRM
also deletes existing provisions from the regulations that are no
longer applicable or are rendered obsolete by the proposed provisions.
We estimate that these regulations will not result in significant
additional costs to the Federal Government or Native American programs.
Regulatory Flexibility Act of 1980
Consistent with the Regulatory Flexibility Act (5 U.S.C. Ch. 6), we
try to anticipate and reduce the impact of rules and paperwork
requirements on small businesses. For each rule with a ``significant
economic impact on a substantial number of small entities,'' we prepare
an analysis describing the rule's imapct on small entities. Small
entities are defined by the Act to include small businesses, small non-
profit organizations and small governmental entities. While this rule
would affect small entities, i.e., Alaskan Native villages and non-
profit organizations, the impact should be minimal. The only
requirement imposed on small entities is for applicant organizations to
submit written appeals. For these reasons, the Secretary certifies that
these rules will not have a significant impact on a substantial number
of small entities.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1980, Public Law 96-511, all
Departments are required to submit to the Office of Management and
Budget (OMB) for review and approval any reporting or recordkeeping
requirement contained in a proposed or final rule. This NPRM does not
contain any reporting or recordkeeping requirements, thus, no
submission to OMB is required.
List of Subjects in 45 CFR Part 1336
Administrative practice and procedure, American Samoa, Appeals
Grant programs--Indians, Grant programs-social programs, Guam, Indians,
Native Hawaiians, Northern Mariana Islands, Reporting and recordkeeping
requirements.
(Catalog of Federal Domestic Assistance Program Number 93.612 Native
American Programs)
Approved: April 4, 1995.
Mary Jo Bane,
Assistant Secretary for Children and Families.
For the reasons set forth in the preamble, 45 CFR part 1336 is
proposed to be amended as follows:
SUBCHAPTER D--THE ADMINISTRATION FOR NATIVE AMERICANS, NATIVE AMERICAN
PROGRAMS
PART 1336--NATIVE AMERICAN PROGRAMS
The authority citation for part 1336 continues to read as follows:
Authority: 42 U.S.C. 2991 et seq.
2. Section 1336.30 is amended by removing paragraphs (a) and (c)
and removing the designation (b) from the remaining paragraph.
3. Sections 1336.33, 1336.34, and 1336.35 are added to read as
follows:
Sec. 1336.33 Eligible applicants and proposed activities which are
ineligible.
(a) Eligibility for the listed programs is restricted to the
following specified categories of organizations. In addition,
applications under the SEDS program from an organization serving
members of a Federally recognized tribe must be submitted through the
tribe.
(1) Social and Economic Development Strategies (SEDS) and
Preservation and Enhancement of Native American Languages:
(i) Federally recognized Indian Tribes;
(ii) Consortia of Indian Tribes;
(iii) Incorporated non-Federally recognized Tribes;
(iv) Incorporated nonprofit multipurpose community-based Indian
organizations;
(v) Urban Indian Centers;
(vi) Public and nonprofit private agencies serving native
Hawaiians;
(vii) National and regional incorporated nonprofit Native American
organizations with Native American community-specific objectives;
(viii) Public and nonprofit private agencies serving native peoples
from Guam, American Samoa, Palau, or the Commonwealth of the Northern
Mariana Islands;
(ix) Alaska Native villages as defined by the Alaska Native Claims
Settlement Act (ANCSA) and/or nonprofit village consortia;
(x) Incorporated nonprofit Alaska Native multipurpose community-
based organizations;
(xi) Nonprofit Alaska Native Regional Associations in Alaska with
village specific projects;
(xii) Nonprofit Native organizations in Alaska with village
specific projects; and
(xiii) Nonprofit Alaska Native community entities or tribal
governing bodies (Indian Reorganization Act or traditional councils) as
recognized by the Bureau of Indian Affairs.
(2) Mitigation of Environmental Impacts to Indian Lands Due to
Department of Defense Activities:
(i) Federally recognized Indian Tribes;
(ii) Incorporated non-Federally and State recognized Tribes;
(iii) Nonprofit Alaska Native community entities or tribal
governing bodies (Indian Reorganization Act (IRA) or traditional
councils) as recognized by the Bureau of Indian Affairs;
(iv) Nonprofit Alaska Native Regional Associations and/or
Corporations with village specific projects; and
(v) Other tribal or village organizations or consortia of Indian
Tribes.
(3) Improvement of the capability of tribal governing bodies to
regulate environmental quality:
(i) Federally recognized Indian Tribes;
(ii) Incorporated non-Federally and State recognized Tribes;
(iii) Consortia of Indian Tribes;
(iv) Alaska Native villages as defined by the Alaska Native Claims
Settlement [[Page 19997]] Act (ANCSA) and/or nonprofit village
consortia;
(v) Tribal governing bodies (IRA or traditional councils) as
recognized by the Bureau of Indian Affairs.
(b) The following is a nonexclusive list of activities that are
ineligible for funding under programs authorized by the Native American
Programs Act of 1974:
(1) Projects in which a grantee would provide training and/or
technical assistance (T/TA) to other tribes or Native American
organizations (``third party T/TA''). However, the purchase of T/TA by
a grantee for its own use or for its members' use (as in the case of a
consortium), where T/TA is necessary to carry out project objectives,
is acceptable;
(2) Projects that request funds for feasibility studies, business
plans, marketing plans or written materials, such as manuals, that are
not an essential part of the applicant's SEDS long-range development
plan;
(3) The support of ongoing social service delivery programs or the
expansion, or continuation, of existing social service delivery
programs;
(4) Core administration functions, or other activities, that
essentially support only the applicant's ongoing administrative
functions;
(5) The conduct of activities which are not responsive to one or
more of the three interrelated ANA goals (Governance Development,
Economic Development, and Social Development);
(6) Proposals from consortia of tribes that are not specific with
regard to support from, and roles of member tribes. An application from
a consortium must have goals and objectives that will create positive
impacts and outcomes in the communities of its members. ANA will not
fund activities by a consortium of tribes which duplicates activities
for which member tribes also receive funding from ANA; and
(7) The purchase of real estate.
Sec. 1336.34 Notice of ineligibility.
(a) Upon a finding by the Commissioner that an organization which
has applied for funding is ineligible or that the activities proposed
by an organization are ineligible, the Commissioner shall inform the
applicant by certified letter of the decision.
(b) The letter must include the following:
(1) The legal and factual grounds for the Commissioner's finding
concerning eligibility;
(2) A copy of these regulations; and
(3) The following statement: This is the final decision of the
Commissioner, Administration for Native Americans. It shall be the
final decision of the Department unless, within 30 days after receiving
this decision as provided in section 810(b) of the Native American
Programs Act of 1974, as amended, and 45 CFR part 1336, you deliver or
mail (you should use registered or certified mail to establish the
date) a written notice of appeal to the Assistant Secretary for
Children and Families, 370 L'Enfant Promenade, S.W., Washington, D.C.
20447. You shall attach to the notice a copy of this decision and note
that you intend an appeal. The appeal must clearly identify the
issue(s) in dispute and contain a full statement of the applicant's
position on such issue(s) along with pertinent facts and reasons in
support of the position. We are enclosing a copy of 45 CFR part 1336
which governs the conduct of appeals under section 810(b). For
additional information on the appeals process see 45 CFR 1336.35.
Sec. 1336.35 Appeal of ineligibility.
The following steps apply when seeking an appeal on a finding of
ineligibility for funding:
(a) An applicant, which has had its application rejected either
because it has been found ineligible or because the activities it
proposes are ineligible for funding by the Commissioner of ANA, may
appeal the Commissioner's ruling to the Assistant Secretary for
Children and Families, in writing, within 30 days following receipt of
ineligibility notification. Written notification as described above
will be served on the applicant by certified mail.
(b) The appeal must clearly identify the issue(s) in dispute and
contain a full statement of the applicant's position on such issue(s)
along with pertinent facts and reasons in support of the position.
(c) Upon receipt of appeal for reconsideration of a rejected
application or activities proposed by an applicant, the Assistant
Secretary will notify the applicant by certified mail that the appeal
has been received.
(d) The Assistant Secretary may appoint an individual who is not a
member of the staff of the Administration for Native Americans to
develop the record in the appeal and to recommend a decision.
(e) The Assistant Secretary or his or her designee shall give the
Commissioner 21 days to respond to the applicant's submission under
paragraph (a) of this section.
(f) The Assistant Secretary or his or her designee shall allow the
applicant to respond to the Commissioner's submission within 10 days of
its receipt by the applicant, and may request the parties to submit
additional information within a specified time period before closing
the record in the appeal.
(g) The Assistant Secretary will review the record in the appeal
and provide a final written decision within 30 days following the
closing of the record.
(h) If the Assistant Secretary determines that the applicant is
eligible or that the activities proposed by the applicant are eligible
for funding, such eligibility shall not be effective until the next
cycle of grant proposals are considered by the Administration for
Native Americans.
[FR Doc. 95-9914 Filed 4-20-95; 8:45 am]
BILLING CODE 4184-01-M
