[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Rules and Regulations]
[Pages 17830-17833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9740]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
25 CFR Part 1001
RIN 1076-AD26
Tribal Self-Governance Program Interim Rule Establishing
Procedures for Awarding Negotiation/Planning Grants
AGENCY: Office of Self-Governance, Office of the Secretary, Interior.
ACTION: Interim rule.
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SUMMARY: In this interim rule, the Office of Self-Governance (OSG)
establishes procedures for awarding negotiation grants; advance
planning grants; and negotiation/planning grants to negotiate for
Department of the Interior (DOI) non-Bureau of Indian Affairs (BIA)
programs, pursuant to the Tribal Self-Governance Act.
DATES: The effective date of this interim rule is April 19, 1996. OSG
will consider Written comments on the interim rule when revising this
rule. To be considered, comments must be received on or before May 31,
1996.
ADDRESSES: Written comments on the interim rule should be sent to the
Director, Office of Self-Governance, U.S. Department of the Interior,
Mail Stop 2548, 1849 C Street NW., Washington DC 20240.
FOR FURTHER INFORMATION CONTACT:
Dr. Kenneth D. Reinfeld, U.S. Department of the Interior, Office of
Self-Governance, 1849 C Street NW., Mail Stop 2548, Washington DC
20240, 202-219-0240.
SUPPLEMENTARY INFORMATION:
Justification for Interim Rule
This rule is not a rulemaking subject to the provisions of section
553 of the Administrative Procedure Act (5 U.S.C. 551, et seq.) (APA).
Section 553(a)(2) excepts from the scope of rulemaking rules ``relating
to agency management or personnel or to public property, loans, grants,
benefits, or contracts.''
Even if this rule were considered rulemaking subject to the
provisions of section 553 of the APA, good cause exists to publish this
interim rule without prior opportunity for public comment.
Section 553 outlines the following rulemaking steps: (1)
Publication of a notice of proposed rulemaking, (2) solicitation of
public comment on the proposed rule, (3) review of comments received
prior to developing the final rule, and (4) publication of the final
rule 30 days prior to the effective date. Using this process at this
time would not serve the goal of the Tribal Self-Governance Act of
1994, which is to expand tribal participation in the tribal self-
governance program, because the process would diminish the ability of
some selected tribes/consortia to effectively negotiate agreements for
fiscal year 1997 or calendar year 1997. The process would also diminish
the ability of other tribes/consortia in the near term to plan for and
possibly delay their participation in tribal self-governance.
The Tribal Self-Governance Act of 1994 (Pub. L. 103-413) was
enacted and became effective on October 25, 1994. While the interim
rule may be changed by later rulemaking, the Act stipulates that the
lack of promulgated regulations will not limit the Act's effect.
Under section 402(b) of the Act, the Director, Office of Self-
Governance may select up to 20 additional participating tribes/
consortia per year for the tribal self-governance program, and
negotiate and enter into an annual written funding agreement with each
participating tribe. In order to complete the negotiation process for
1997 funding agreements, it is necessary to make available negotiation
grants to the new tribes by May 15, 1996. The Act mandates that the
Secretary submit copies of the funding agreements at least 90 days
before the proposed effective date to the appropriate committees of the
Congress and to each tribe that is served by the BIA agency that is
serving the tribe that is a party to the funding agreement. Initial
negotiations with a tribe/consortium located in an area and/or agency
which has not previously been involved with self-governance
negotiations, will take approximately two months from start to finish.
Publication of this interim rule without prior opportunity for
public comment is necessary to complete the above procedures in a
timely fashion. Therefore, applying the criteria at 5 U.S.C.
553(b)(3)(B) and 553(d), good cause exists to make the rule effective
less than thirty days from today's date.
Background
The tribal self-governance program is designed to promote self
determination by allowing tribes to assume more control through
negotiated agreements of programs operated by the Department of the
Interior. The new law allows for negotiations to be conducted for
programs operated by BIA and for programs operated by other bureaus and
offices within the Department that are available to Indians or when
there is an historical, cultural, or geographic connection to an Indian
tribe.
The Tribal Self-Governance Act of 1994 requires the Secretary, upon
request of a majority of self-governance tribes, to initiate procedures
under the Negotiated Rulemaking Act, 5 U.S.C. 561 et seq., to negotiate
and promulgate regulations necessary to carry out the tribal self-
governance program. The Act calls for a negotiated rulemaking committee
to be established pursuant to 5 U.S.C. 565 comprised of Federal and
tribal representatives, with a majority of the tribal representatives
representing self-governance tribes. The Act also authorizes the
Secretary to adapt negotiated rulemaking procedures to the unique
context of self-governance and the government-to-government
relationship between the United States and the Indian tribes. On
November 1, 1994, a majority of self-governance tribes wrote the
Secretary requesting the immediate initiation of negotiated rulemaking.
On February 15, 1995, the self-governance negotiated rulemaking
committee was established.
On the same day, an interim rule was published in the Federal
Register at 60 FR 8553 announcing the criteria for tribes to be
included in an applicant pool and the establishment of the selection
process for tribes to negotiate agreements pursuant to the Tribal Self-
Governance Act of 1994. This interim rule allowed an additional 20 new
tribes/consortia to negotiate compacts and annual funding agreements
for fiscal year 1996 and calendar year 1996 as authorized by the Act.
Using the same interim rule, a notice of deadline for submitting
completed applications to begin participation in tribal self-governance
in fiscal year 1997 or calendar year 1997 was published in the Federal
Register on February 1, 1996. To date, a total of 54 compacts and
annual funding agreements have been negotiated.
Since publication of the interim rule, the self-governance
negotiated rulemaking committee has reached
[[Page 17831]]
tentative agreement on draft provisions relating to the procedures for
awarding negotiation grants; advance planning grants; and negotiation/
planning grants to negotiate for DOI non-BIA programs. These provisions
along with other sections of the negotiated rules are subject to notice
and public comment procedures as part of the rulemaking process. Given
the fact that more time is needed to reach agreement on other sections
of the negotiated rules, it is not possible to provide notice and
obtain public comment on the rule so as to award the grants in a timely
fashion using fiscal year 1996 funds.
Purpose of Rule
This interim rule establishes procedures which are consistent with
the self-governance negotiated rulemaking committee's negotiations for
awarding negotiation and planning grants. The interim rule is intended
to allow the grants to be awarded using fiscal year 1996 funds.
This interim rule will take immediate effect to allow the grant
selection process for the upcoming year to begin under an interim rule
that has been tentatively agreed upon by the self-governance negotiated
rulemaking committee.
The Department is adopting this rule before the self-governance
negotiated rulemaking process is completed. This interim rule will be
subject to negotiation and amendment by the negotiated rulemaking
process. The self-governance negotiated rulemaking committee will use
any comments received following the publication of this interim rule in
negotiating the final rule. Furthermore, the portion of the interim
rule governing the awarding of the grants will be subject to additional
comment once the proposed regulations recommended by the self-
governance rulemaking committee are published in the Federal Register.
The final published rule will supersede this interim rule.
A. E.O. 12612
The Department has determined that this interim rule does not have
significant federalism effects.
B. E.O. 12630
In accordance with Executive Order 12630, the Department has
determined that this interim rule does not have significant takings
implications.
C. E.O. 2778
The Department has certified to the Office of Management and Budget
that this interim rule meets the applicable standards provided in
sections 2(a) and 2(b)(2) of Executive Order 12778.
D. E.O. 12886
This interim rule is not a significant regulatory action under
Executive Order 12866, and therefore will not be reviewed by the Office
of Management and Budget.
E. Regulatory Flexibility Act Statement
This interim rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
F. NEPA Statement
The Department has determined that this interim rule does not
constitute a major Federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969.
G. Information Collection Statement
The information collection requirements contained in this interim
rule are included in current collections 1076-0090, 0091, 0096, 1030
and OMB Circulars A-102, A-110, and SF-424.
H. Authorship Statement
The primary author of this document is Dr. Kenneth Reinfield,
Office of Self- Governance.
List of Subjects in 25 CFR Part 1001
Indians, Native Americans.
For the reasons given in the preamble, title 25, part 1001 is
amended as follows:
PART 1001--SELF-GOVERNANCE PROGRAM
1. The authority citation for part 1001 continues to read as
follows:
Authority: 26 U.S.C. 450 note, 458aa-458gg.
2. Sections 1001.7 through 1001.10 are added to read as follows:
Sec. 1001.7 Availability, amount, and number of planning and
negotiation grants.
(a) What is the purpose of this section? This section describes how
to apply for planning and negotiation grants authorized by section
402(d) of the Act to help meet tribal costs incurred:
(1) In meeting the planning phase requirement of Pub. L. 103-413,
including planning to negotiate non-BIA programs, services, functions
and activities; and
(2) In conducting negotiations.
(b) What types of grants are available? Three categories of grants
may be available:
(1) Negotiation grants for tribes/consortia selected from the
applicant pool as described in Sec. 1001.5 of these regulations;
(2) Planning grants for tribes/consortia requiring advance funding
to meet the planning phase requirement of Pub. L. 103-413; and
(3) Financial assistance for tribes/consortia to plan for
negotiating for non-BIA programs, services, functions and activities,
as described in Sec. 1001.10.
(c) Will grants always be made available to meet the planning phase
requirement as described in section 402(d) of Pub. L. 103-413? No.
Grants to cover some or all of the planning costs that a tribe/
consortium may incur may be made available depending upon the
availability of funds appropriated by Congress. We will publish notice
of availability of grants in the Federal Register as described in this
section.
(d) May a tribe use its own resources to meet its planning and
negotiation expenses in preparation for entering into self-governance?
Yes. A tribe/consortium may use its own resources to meet these costs.
Receiving a grant is not necessary to meet the planning phase
requirement of the Act or to negotiate a compact and annual funding
agreement.
(e) What happens if there are insufficient funds to meet the
anticipated tribal requests for planning and negotiation grants in any
given year? If appropriated funds are available but insufficient to
meet the total requests from tribes/consortia, we will give first
priority to those that have been selected from the applicant pool to
negotiate an annual funding agreement. We will give second priority to
tribes/consortia that require advance funds to meet the planning
requirement for entry into the self-governance program. We will give
third priority to tribes/consortia that require negotiation/planning
funds to negotiate for DOI non-BIA programs.
(f) How many grants will the Department make each year and what
funding will be available? The number and size of grants awarded each
year will depend on Congressional appropriations and tribal interest.
Each year, we will publish a notice in the Federal Register which
provides relevant details about the application process, including: The
funds available, timeframes, and requirements for negotiation and
advance planning specified in this part.
[[Page 17832]]
Sec. 1001.8 Selection criteria for tribes/consortia to receive a
negotiation grant.
(a) Who may be selected to receive a negotiation grant? Any tribe/
consortium that has been accepted into the applicant pool in accordance
with Sec. 1001.5 and has been selected to negotiate a self-governance
annual funding agreement is eligible to apply for a negotiation grant.
Each year, we will publish a notice in the Federal Register with all
relevant details as to how tribes/consortia which have been selected
can apply for negotiation grants.
(b) What must a tribe/consortium do to receive a negotiation grant?
(1) To receive a negotiation grant, a tribe/consortium must:
(i) Be selected from the applicant pool to negotiate an annual
funding agreement;
(ii) Be identified as eligible to receive a negotiation grant; and
(iii) Not have received a negotiation grant within the 3 years
preceding the date of the latest Federal Register announcement
described in Sec. 1001.7.
(2) The tribe/consortium must submit a letter affirming its
readiness to negotiate and formally request a negotiation grant to
prepare for and negotiate a self-governance agreement. These grants are
not competitive.
(c) May a selected tribe negotiate without applying for a
negotiation grant? Yes. In this case, the tribe should notify us in
writing so that funds can be reallocated for other grants.
Sec. 1001.9 Selection criteria for tribes/consortia seeking advance
planning grant funding.
(a) Who is eligible to apply for a planning grant that will be
awarded before a tribe/consortium is admitted into the applicant pool?
Any tribe/consortium that is not a self-governance tribe and needs
advance funding in order to complete the planning phase requirement may
apply. Tribes/consortia that have received a planning grant within 3
years preceding the date of the latest Federal Register announcement
described in Sec. 1001.7 are not eligible.
(b) What must a tribe/consortium seeking a planning grant submit in
order to meet the planning phase requirements? A tribe/consortium must
submit the following material:
(1) a tribal resolution or other final action of the tribal
governing body indicating a desire to plan for tribal self-governance;
(2) audits from the last 3 years which document that the tribe
meets the requirement of being free from any material audit exception;
(3) a proposal that describes the tribe's/consortium's plans to
conduct:
(i) legal and budgetary research, and
(ii) internal tribal government and organization planning;
(4) a timeline indicating when planning will start and end; and
(5) evidence that the tribe/consortium can perform the tasks
associated with its proposal (i.e., submit resumes and position
descriptions of key staff or consultants to be used).
(c) How will tribes/consortia know when and how to apply for
planning grants? Each year, we will publish in the Federal Register a
notice of the availability of planning grants for additional tribes as
described in Sec. 1001.7. This notice will identify the specific
details for applying.
(d) What criteria will be used to award planning grants to those
tribes/consortia requiring advance funding to meet the planning phase
requirement of Public Law 103-413? Advance planning grants are
discretionary and based on need. The following criteria will be used to
determine whether to award a planning grant to a tribe/consortium
before the tribe is being selected into the applicant pool:
(1) A complete application as described in Secs. 1001.9(b) and
1001.9(c);
(2) A demonstration of financial need. We will rank applications
according to the percentage of tribal resources to total resources as
indicated in the latest A-128 audit. We will give priority to
applications that demonstrate financial need by having a lower level of
tribal resources as a percent of total resources; and
(3) Other factors that demonstrate the readiness of the tribe/
consortium to enter into a self-governance agreement, including
previous efforts of the tribe/consortium to participate in self-
governance.
(e) Can tribes/consortia that receive advance planning grants also
apply for a negotiation grant? Yes. Tribes/consortia that receive
advance planning grants may submit a completed application to be
included in the applicant pool. Once approved for inclusion in the
applicant pool, the tribe/consortium may apply for a negotiation grant
according to the process identified in Sec. 1001.7 above.
(f) When and how will a tribe/consortium know whether it has been
selected to receive an advance planning grant? Within 30 days of the
deadline for submitting applications we will notify the tribe/
consortium by letter whether it has been selected to receive an advance
planning grant.
Sec. 1001.10 Selection criteria for other planning and negotiating
financial assistance.
(a) What is the purpose of this section? This section describes how
to apply for other financial assistance for planning and negotiating of
a DOI non-BIA program, service, function or activity that may be
available, as well as the selection process.
(b) Are there other funds that may be available to self-governance
tribes/consortia for planning and negotiating with DOI non-BIA bureaus?
Yes.Tribes/consortia may contact the Director, Office of Self-
Governance to determine if funds are available for the purpose of
planning and negotiating with DOI non-BIA bureaus under this section. A
tribe/consortium may also request information from a DOI non-BIA bureau
on any funds which may be available from that bureau.
(c) Who is eligible to apply for financial assistance to plan and
negotiate for a DOI non-BIA program? Any existing self-governance
tribe/consortium is eligible.
(d) Under what circumstances may planning and negotiation financial
assistance be made available to tribes/consortia? At the discretion of
the Director, grants may be awarded when requested by the tribe and
coordinated with the DOI non-BIA agency involved.
(e) How does the tribe/consortium apply for a grant to plan and
negotiate for a DOI non-BIA program? When such funds are available, we
will publish a notice of their availability and a deadline for
submitting applications for such grants in the Federal Register as
indicated in Sec. 1001.7.
(f) What must be included in the application? The application must
include the following:
(1) the tribal resolution or other final action of the tribal
governing body indicating that the tribe/consortium intends to
negotiate for a DOI non-BIA program;
(2) a copy of the proposal or summary that was submitted to the DOI
non-BIA bureau;
(3) a time line indicating when planning will begin and end;
(4) the planning resources from all other sources that are approved
and/or anticipated for the planning activity; and
(5) the amount requested and a justification of why it is needed by
the tribe/consortium.
(g) What criteria will we use to award grants to those tribes/
consortia requesting financial assistance to plan and negotiate for a
DOI non-BIA program? The award of such grants is discretionary. After
consulting with the
[[Page 17833]]
requesting tribe/consortium and the appropriate DOI non-BIA bureau, the
Director will determine whether to award a grant to plan and negotiate
for a DOI non-BIA program. The determination will be based upon the
complexity of the project, the availability of resources from all other
sources, and the relative need of the tribe/consortium to receive such
funds for the successful completion of the planning and negotiating
activity, as determined by the percentage of tribal resources to total
resources as indicated in the latest A-128 audit. All decisions to
award or not to award grants as described in paragraphs (e) and (f) of
this section are final for the Department.
Dated: April 4, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-9740 Filed 4-22-96; 8:45 am]
BILLING CODE 4310-02-M
