[Federal Register Volume 61, Number 161 (Monday, August 19, 1996)]
[Rules and Regulations]
[Pages 42817-42822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20982]
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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: Final rule.
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SUMMARY: On September 30, 1992, the Congress passed the Older Americans
Act Amendments of 1992 (Pub. L. 102-375), amending the Native American
Programs Act of 1974. In accordance with these amendments, the
Administration for Native Americans (ANA) is amending 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 HHS Departmental Appeals Board's determination to uphold
the appeal. It does not guarantee ANA approval for grant funding.
EFFECTIVE DATE: September 18, 1996.
FOR FURTHER INFORMATION CONTACT: R. Denise Rodriguez (202) 690-6265,
Department of Health and Human Services, Administration for Children
and Families, 200 Independence Avenue SW., Room 348-F, Washington, DC
20201-0001.
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
[[Page 42818]]
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) and
the Indian Reorganization Act Amendments (Pub. L. 100-581). 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. 8094A of the Department of Defense Appropriations
Act, 1994 (Pub. L. 103-139), and Sec. 8094A, the Department of Defense
Appropriations Act, 1995 (Pub. L. 103-335). 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 Final Rule
A Notice of Proposed Rulemaking (NPRM) was published in the Federal
Register on April 21, 1995 (60 FR 19994). No comments were received.
However, we have made changes to the final rule for the benefit of all
parties concerned. We now identify the Departmental Appeals Board (DAB)
as the body that is delegated the authority to review appeals instead
of the Assistant Secretary for Children and Families as set forth in
the NPRM. On reconsideration of the NPRM, we determined that it would
be logical for the DAB to hear ANA grants eligibility determination
appeals, since the DAB already handles appeals regarding various grant
programs administered by the Department, including appeals of
terminations, suspensions and denials of refunding under ANA grant
programs pursuant to 45 CFR 1336.52(c)(2). Accordingly, the Assistant
Secretary has delegated the appeals process to the DAB. The Assistant
Secretary's delegation to the DAB strengthens the appeals process and
affords administrative convenience, beneficial to all parties
concerned. For purposes of clarification, we have revised our
descriptions of eligible applicants as described below.
Tribally Controlled Community Colleges, Tribally Controlled Post-
Secondary Vocational Institutions, and colleges and universities
located in Hawaii, Guam, American Samoa, Palau, or the Commonwealth of
the Northern Mariana Islands which serve Native American Pacific
Islanders were added under 45 CFR 1336.33(a)(1) to the list of
organizations eligible for funding under the Social and Economic
Development Strategies (SEDS) and Preservation and Enhancement of
Native American Languages programs. This new category of organizations
was added to make it clear that such organizations are eligible to
apply for funding under these programs. These organizations would have
qualified under the proposed categories, but the addition of this
category will clearly establish the eligibility of such organizations.
The final regulations include a separate listing at Sec. 1336.33(a)(2)
of eligible organizations for the Alaska-Specific Social and Economic
Development Strategies (SEDS) Projects. These organizations were listed
under the eligible organizations for the SEDS program. The separate
listings are necessary because Alaskan organizations can elect to apply
under either the SEDS competition or the Alaska-Specific Social and
Economic Development Strategies Project. In the final rule,
Sec. 1336.33(a)(4), which was (a)(3) in the NPRM, we have added
Nonprofit Alaska Native Regional Corporations/Associations with
village-specific projects and other tribal or village organizations or
consortia of Indian tribes to the list of eligible organizations for
the program on the improvement of the capability of tribal governing
bodies to regulate environmental quality. We added these categories in
recognition of the possibility that such organizations performed
similar functions to the organizations listed in the NPRM.
The final rule establishes 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 rule adds three new sections to 45 CFR
Part 1336, Subpart C that lists 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. Appeals will be governed by the
Departmental Appeals Board regulations at 45 CFR Part 16, except as
otherwise provided in these regulations.
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 Sec. 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 Final Rule
In Subpart C, Part 1336, Native American Projects, we are including
a new Sec. 1336.33, ``Eligible 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
[[Page 42819]]
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 peoples 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.
Applications from tribal components which are tribally-authorized
divisions of a larger tribe must be approved by the governing body of
the Tribe. This interpretation of the requirements 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 Sec. 803(a) are applied to such
organizations 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.
ANA also has included in the final rule a requirement for its
programs that ``[a]pplicants, other than tribes or Alaska Native
Village governments, proposing a project benefiting Native Americans or
Native Alaskans, or both, must provide assurance that its duly elected
or appointed board of directors is representative of the community to
be served.'' We believe this requirement is consistent with the NPRM
which made it clear from the proposed list of eligible organizations
that in order to be eligible an organization had to be in some way
representative of a Native American community. The requirement for an
assurance of the representativeness of the organizations's board is
only an elaboration of the existing requirement.
The requirements of paragraph (a)(1) set forth ANA's interpretation
of the eligibility requirements of Sec. 803(a) of the Act. The Agency
has removed 45 CFR 1336.30(a) which restated the language of the
statute. Continued use of that provision in the regulations would have
caused confusion. In addition, ANA has removed 45 CFR 1336.30(c) which
provided that projects in American Samoa, Guam and the Northern Mariana
Islands received funding under Sec. 803 ``subject to the availability
of funds.'' This provision was based upon a requirement in Sec. 803(a)
which was deleted in 1992 by Pub. L. 102-497. In accordance with these
removals, the heading of Sec. 1336.30 has been changed to ``Eligibility
under sections 804 and 805 of the Native American Programs Act of
1974''.
Paragraph (a)(2) lists 5 categories of applicants eligible to apply
for funds under the Alaska-Specific Social and Economic Development
Strategies Project. As explained earlier, this separate listing
contains organizations that were in the NPRM but separate listings are
necessary because Alaskan organizations can elect to apply under either
the SEDS competition or the Alaska-Specific Social and Economic
Development Strategies Project.
Paragraph (a)(3), which was (a)(2) in the NPRM, 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
ANA has decided as a matter of policy to include this program under the
regulations.
Paragraph (a)(4), which was (a)(3) in the NPRM, 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 recognized
Indian 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 is derived from the
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 provisions being added to 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.
Eligibility under Sec. 805 is addressed in part under the revised 45
CFR 1336.30. 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 Sec. 805, the Agency will
provide additional guidance on eligibility under that provision.
Applicants for funding under Sec. 805 who 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 45 CFR 1336.35.
Paragraph (b) provides a nonexclusive list of 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
activities 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 T/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
[[Page 42820]]
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 projects that become
self-sustaining and not for the on-going administration of tribes or
organizations. (However, in Alaska-Specific SEDS Projects, ANA will
consider funding core administrative capacity building projects at
the village government level if the village does not have governing
systems in place.) This exception has been added because grantees
for Alaska-Specific SEDS Projects at the village government level
are frequently village governments or organizations performing
governmental functions on behalf of village governments. In many
instances, such funding is necessary to ensure that villages develop
the minimum governmental services necessary to support social and
economic development.
In section 1336.34, Notice of ineligibility, we require 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 section 1336.35, ``Appeal of ineligibility'', we are
establishing 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 this
authority to the Assistant Secretary. The Assistant Secretary has
delegated to the DAB the review of appeals made under section 810(b).
Except as otherwise provided in these regulations, Appeals will be
governed by the DAB regulations at 45 CFR Part 16. Under this section,
the applicant has 30 days following receipt of ineligibility
notification to appeal, in writing, the Commissioner's ruling. The
appeal must clearly identify the issues. Under this section, the
Commissioner shall have 45 days to respond to the applicant's
submission and the applicant 20 days to respond to the Commissioner's
submission to DAB. 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 DAB will provide a
final written decision within 30 days of the closing of the record,
unless the Board determines for good reason that a decision cannot be
issued within the time period and so notifies the parties. If a
determination is made by the DAB 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 final rule 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 final rule also deletes existing provisions from the regulations
that are no longer applicable or are rendered obsolete by this final
rule. We estimate that these regulations will not result in significant
additional costs to the Federal government or Native American programs.
Regulatory Flexibility Act of 1995
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 impact 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
affects small entities, i.e., Alaskan Native villages and non-profit
organizations, based on past experience with respect to other appeals
under ANA, we expect the impact to be minimal. For this reason, the
Assistant 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 1995, Pub. L. 104-13, 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 final rule 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: July 23, 1996.
Mary Jo Bane,
Assistant Secretary for Children and Families.
For the reasons set forth in the preamble, 45 CFR Part 1336 is
amended as follows:
SUBCHAPTER D--THE ADMINISTRATION FOR NATIVE AMERICANS, NATIVE AMERICAN
PROGRAMS
PART 1336--NATIVE AMERICAN PROGRAMS
1. 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),
removing the designation (b) from the remaining paragraph, and revising
the section heading to read as follows:
Sec. 1336.30 Eligibility under sections 804 and 805 of the Native
American Programs Act of 1974.
* * * * *
3. Three new sections, Secs. 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 from tribal components which are tribally-authorized
divisions of a larger tribe must be approved by the
[[Page 42821]]
governing body of the Tribe. If the applicant, other than a tribe or an
Alaska Native Village government, is proposing a project benefiting
Native Americans or Native Alaskans, or both, it must provide assurance
that its duly elected or appointed board of directors is representative
of the community to be served.
(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 multi-purpose community-based Indian
organizations;
(v) Urban Indian Centers;
(vi) National and regional incorporated nonprofit Native American
organizations with Native American community-specific objectives;
(vii) Alaska Native villages as defined in the Alaska Native Claims
Settlement Act (ANSCA) and/or nonprofit village consortia;
(viii) Incorporated nonprofit Alaska Native multi-purpose
community-based organizations;
(ix) Nonprofit Alaska Native Regional Corporations/Associations in
Alaska with village specific projects;
(x) Nonprofit Native organizations in Alaska with village specific
projects;
(xi) Public and nonprofit private agencies serving Native
Hawaiians;
(xii) Public and nonprofit private agencies serving native peoples
from Guam, American Samoa, Palau, or the Commonwealth of the Northern
Mariana Islands. (The populations served may be located on these
islands or in the United States);
(xiii) Tribally Controlled Community Colleges Tribally Controlled
Post-Secondary Vocational Institutions, and colleges and universities
located in Hawaii, Guam, American Samoa, Palau, or the Commonwealth of
the Northern Mariana Islands which serve Native American Pacific
Islanders; and
(xiv) Nonprofit Alaska Native community entities or tribal
governing bodies (Indian Reorganization Act or traditional councils) as
recognized by the Bureau of Indian Affairs.
(Statutory authority: Sections 803(a) and 803C of the Native
American Programs Act of 1974, as amended, 42 U.S.C. 2991 b(a) and
42 U.S.C. 2991b-3)
(2) Alaska-Specific Social and Economic Development Strategies
(SEDS) Projects:
(i) Federally recognized Indian Tribes in Alaska;
(ii) Alaska Native villages as defined in the Alaska Native Claims
Settlement Act (ANCSA) and/or nonprofit village consortia;
(iii) Incorporated nonprofit Alaska Native multi-purpose community-
based organizations;
(iv) Nonprofit Alaska Native Regional Corporations/Associations in
Alaska with village specific projects; and
(v) Nonprofit Native organizations in Alaska with village specific
projects.
(3) 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. (Statutory authority: Sec. 8094A of the Department of Defense
Appropriations Act, 1994 (Public Law 103-139), Sec. 8094A of the Native
Americans Programs Act of 1974, as amended, 42 U.S.C. 2991h(b)).
(4) Improvement of the capability of tribal governing bodies to
regulate environmental quality:
(i) Federally recognized Indian Tribes;
(ii) Incorporated non-Federally and State recognized Indian tribes;
(iii) Alaska Native villages as defined in the Alaska Native Claims
Settlement Act (ANSCA) and/or nonprofit village consortia;
(iv) Nonprofit Alaska Native Regional Corporations/Associations
with village-specific projects;
(v) Other tribal or village organizations or consortia of Indian
tribes: and
(vi) Tribal governing bodies (IRA or traditional councils) as
recognized by the Bureau of Indian Affairs. (Statutory authority:
Sections 803(d) of the Native Americans Programs Act of 1974, as
amended 42 U.S.C. 2991b(d).)
(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 on-going 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 on-going administrative
functions; however, for Competitive Area 2, Alaska-Specific SEDS
Projects, ANA will consider funding core administrative capacity
building projects at the village government level if the village does
not have governing systems in place;
(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. (Statutory authority: Sections
803B of the Native American Programs Act of 1974, as amended, 42 U.S.C.
2991b-2)
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 the regulations in this part; 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 Sec. 810(b) of the Native Americans
Programs Act of 1974, as amended, and 45 CFR part 1336, you deliver or
mail
[[Page 42822]]
(you should use registered or certified mail to establish the date) a
written notice of appeal to the HHS Departmental Appeals Board, 200
Independence Avenue, S.W., Washington, D.C. 20201. 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
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 Sec. 810(b). For additional information on the appeals
process see 45 CFR 1336.35. (Statutory authority: Sections 810(b) of
the Native American Programs Act of 1974, as amended, 42 U.S.C.
2991h(b).)
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 HHS Departmental Appeals Board,
in writing, within 30 days following receipt of ineligibility
notification.
(b) The appeal must clearly identify the issue(s) in dispute and
contain a 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 Departmental
Appeals Board will notify the applicant by certified mail that the
appeal has been received.
(d) The applicant's request for reconsideration will be reviewed by
the Departmental Appeals Board in accordance with 45 CFR part 16,
except as otherwise provided in this part.
(e) The Commissioner shall have 45 days to respond to the
applicant's submission under paragraph (a) of this section.
(f) The applicant shall have 20 days to respond to the
Commissioner's submission and the parties may be requested to submit
additional information within a specified time period before closing
the record in the appeal.
(g) The Departmental Appeals Board will review the record in the
appeal and provide a final written decision within 30 days following
the closing of the record, unless the Board determines for good reason
that a decision cannot be issued within this time period and so
notifies the parties.
(h) If the Departmental Appeals Board 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. (Statutory authority: Sections 810(b) of the Native
American Programs Act of 1974, as amended, 42 U.S.C. 2991h(b).)
[FR Doc. 96-20982 Filed 8-16-96; 8:45 am]
BILLING CODE 4184-01-P
