Title 45—Public Welfare--Volume 1
PART 1336—NATIVE AMERICAN PROGRAMS
§ 1336.10   Definitions.
For the purposes of this part, unless the context otherwise requires:
Act means the Native American Programs Act of 1974, as amended (42 U.S.C. 2991 et seq. ).
Alaskan Native means a person who is an Alaskan Indian, Eskimo, or Aleut, or any combination thereof. The term also includes any person who is regarded as an Alaskan Native by the Alaskan Native Village or group of which he or she claims to be a member and whose father or mother is (or, if deceased, was) regarded as an Alaskan Native by an Alaskan Native Village or group. The term includes any Alaskan Native as so defined, either or both of whose adoptive parents are not Alaskan Natives.
American Indian or Indian means any individual who is a member or a descendant of a member of a North American tribe, band, Pueblo or other organized group of native people who are indigenous to the Continental United States, or who otherwise have a special relationship with the United States or a State through treaty, agreement, or some other form of recognition. This includes any individual who claims to be an Indian and who is regarded as such by the Indian tribe, group, band, or community of which he or she claims to be a member.
ANA means the Administration for Native Americans within the Office of Human Development Services.
Applicant means an organization which has applied for financial assistance from ANA.
Budget period means the interval of time into which a project period is divided for budgetary and funding purposes, and for which a grant is made. A budget period usually lasts one year in a multi-year project period.
Economic and social self-sufficiency means the ability of Native Americans to define and achieve their own economic and social goals.
Indian tribe means a distinct political community of Indians which exercises powers of self-government.
Native American means American Indian, Indian, Native Hawaiian, and Alaskan Native, as defined in the Act, or in this section.
Project period means, for discretionary grants and cooperative agreements, the total time for which the recipient's project or program is approved for support, including any extension, subject to the availability of funds, satisfactory progress, and a determination by HHS that continued funding is in the best interest of the Government.
Recipient means an organization which has applied for financial assistance, and to which financial assistance is awarded under this Act. The term includes grantees and recipients of cooperative agreements.
§ 1336.20   Program purpose.
The purpose of the Native American Programs authorized by the Native American Programs Act of 1974 is to promote the goal of economic and social self-sufficiency for Native Americans.
§ 1336.30   Eligibility under sections 804 and 805 of the Native American Programs Act of 1974.
Financial assistance under sections 804 and 805 may be made to public or private agencies including “for-profit” organizations.
§ 1336.31   Project approval procedures.
(a) Each applicant for financial assistance under section 803 of the Act must submit a work plan that falls within the statutory requirements of the Act and meets the criteria of program announcements published by ANA in the Federal Register. If the proposed project extends beyond one year, a work plan must be submitted for the period of time specified by the Commissioner in the Program Announcement. ANA will determine whether to approve all, part, or none of the requested work plan. Proposed changes to the approved work plan must receive the written approval of ANA prior to implementation by the recipient.
(b) ANA will negotiate the approved project goals, objectives, work plan, and the funding level for each budget period with each recipient.
(c) The evaluation for the purpose of making an approval decision on each proposed work plan will take into account the proposal's conformance with ANA program purposes and the recipient's past performance and accomplishments.
(d) Financial assistance awarded under section 803 may be renewed by ANA to grantees based on acceptable work plans and past performance.
§ 1336.32   Grants.
Generally, financial assistance will be made available for a one-year budget period and subsequent non-competing continuation awards with the same project period will also be for one year. A recipient must submit a separate application to have financial assistance continued for each subsequent year, with the same project period, but the continuation application need only contain budget and a summary progress report.
§ 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 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.
(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: § 8094A of the Department of Defense Appropriations Act, 1994 (Public Law 103-139), § 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)
§ 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 § 810(b) of the Native Americans 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 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 § 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).)
§ 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).)
§ 1336.40   General.
Progress reports and continuation applications must contain sufficient information for ANA to determine the extent to which the recipient meets ANA project evaluation standards. Sufficient information means information adequate to enable ANA to compare the recipient's accomplishments with the goals and activities of the approved work plan and with ANA project evaluation criteria.
§ 1336.50   Financial and administrative requirements.
(a) General. The following HHS regulations apply to all grants awarded under this part:
45 CFR Part 16 Department grant appeals process.
45 CFR Part 46 Protection of human subjects.
45 CFR part 75—Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards
45 CFR Part 80 Nondiscrimination under programs receiving Federal assistance through the Department of Health and Human Services—Effectuation of title VI of the Civil Rights Act of 1964.
45 CFR Part 81 Practice and procedure for hearing under part 80.
45 CFR Part 84 Nondiscrimination on the basis of handicap in federally assisted programs.
45 CFR Part 86 Nondiscrimination on the basis of sex in education programs and activities receiving or benefiting from Federal financial assistance.
45 CFR Part 91 Nondiscrimination on the basis of age in programs or activities receiving Federal financial assistance from HHS.
(b) Cost sharing or matching —(1) Policy. Recipients of financial assistance under sections 803, 804, and 805 of the Act are required to provide a matching share of 20 percent of the approved cost of the assisted project.
(2) Application. If an applicant or recipient wishes to request a waiver of the requirement for a 20 percent non-Federal matching share, the following conditions must be met:
(i) If an applicant for an initial award or an applicant for a non-competing continuation award anticipates that it will be unable to meet the cost-sharing or matching requirement, the applicant may request a waiver of the 20 percent non-Federal matching share. It must include with its application for funding, the submission of a revised SF424A, a written justification that clearly explains why the applicant cannot provide the matching share including the amount of non-Federal share to be waived, and how it meets the criteria indicated in paragraph (b)(3) of this section. For an applicant for an initial award, or an applicant seeking a non-competing continuation award, a request for a waiver must be submitted at the time of the initial application or non-competing continuation (NCC) application.
(ii) If a recipient is unable to contribute part or all of the required non-Federal matching share during a budget period due to an emergency situation such as a natural disaster, man-made disaster, act of terrorism, public health emergency, or other qualifying event, the recipient may request a waiver of all or part of the requirement for a 20 percent non-Federal matching share specified under paragraph (b)(1) of this section. Any requests for an emergency waiver may be submitted at any time during a budget period as soon as the adverse effect is known to the recipient and must be submitted in accordance with the requirements specified in paragraph (b)(3) of this section.
(3) Criteria. Both of the following criteria must be met for an applicant or recipient to be eligible for a waiver of the non-Federal matching requirement:
(i) Applicant or recipient lacks the available resources to meet part or all of the non-Federal matching requirement. This must be documented by an institutional audit if available, or a full disclosure of applicant's or recipient's total assets and liabilities.
(ii) Applicants or recipients can document that reasonable efforts to obtain cash or in-kind contributions for the purposes of the project from third parties have been unsuccessful, including evidence and the results of such attempts. Evidence of such efforts can include letters from possible sources of funding or any relevant correspondence, indicating that the requested resources are not available for that project. The requests must be appropriate to the source in terms of project purpose, applicant eligibility, and reasonableness of the request.
(4) Approval. For a waiver to be approved, ANA must determine that it will not prevent the award of other grants at levels it believes are desirable for the purposes of the program. Waiver of all or part of the non-Federal share shall apply only to the budget period for which application was made.
(c) Maintenance of effort. (1) Applications for financial assistance under this Part must include either a statement of compliance with the maintenance of effort requirement contained in section 803(c) of the Act, or a request for a waiver, in accordance with criteria established in this paragraph.
(2) To be eligible for a waiver of the maintenance of effort requirement, the applicant must demonstrate to ANA that the organization whose funds previously supported the project discontinued its support:
(i) As a result of funding limitations; and
(ii) Not as a result of an adverse evaluation of the project's purpose or the manner in which it was conducted; and
(iii) Not because it was anticipated that Federal funds would replace the original source of project funding.
(3) In addition, the applicant must demonstrate in the request for a waiver that the maintenance of effort requirement would result in insurmountable hardship for the recipient or would otherwise be inconsistent with the purposes of this part.
(d) Delegation of project operations. (1) Each subgrant awarded to a delegate agency must have specific prior approval by ANA. Such delegation must be formalized by written agreement.
(2) The agreement must specify the activities to be performed by the delegate agency, the time schedule, the policies and procedures to be followed, the dollar limitations, and the costs allowed. The applicant must submit a budget for each delegate agency as part of its application.
(e) Unallowable costs. ANA funds may not be used by recipients to purchase real property.
(f) Office of the Chief Executive. The costs of salaries and expenses of the Office of Chief Executive of a federally recognized Indian tribal government (as defined in § 75.2 of this title ) are allowable, provided that such costs exclude any portion of salaries and expenses of the Office of Chief Executive that are a cost of general government and provided they are related to a project assisted under this part.
§ 1336.51   Project period.
The Notice of Financial Assistance Awarded will specify the period for which support is intended, although the Department makes funding commitments only for one budget period at a time. Financial assistance under section 803 of the Act may be ongoing, subject to policy decisions and funding limitations.
§ 1336.52   Appeals.
(a) Right to appeal. Recipients whose financial assistance has been suspended or terminated, or whose non-competing continuation applications for refunding have been denied, may appeal such decisions using the procedures described in this section. Denial of an application for refunding means the refusal to fund a non-competing continuation application for a budget period within a previously approved project period.
(b) Suspension, termination, and denial of funding. Procedures for and definitions of suspension and termination of financial assistance are published in 45 CFR 75.371 through 75.380. Appeals from a denial of refunding will be treated the same procedurally as appeals to termination of financial assistance. The term “denial of refunding” does not include policy decisions to eliminate one or more activities of an approved project. A decision not to fund an application at the end of the recipients's project period is not a “denial of refunding” and is not subject to appeal.
(c) Hearings. (1) A recipient shall be given an initial written notice at least thirty (30) days prior to the suspension or termination of financial assistance except in emergency situations, which occur when Federal property is in imminent danger of dissipation, or when life, health, or safety is endangered. During this period of time, the recipient has the opportunity to show cause to ANA why such action should not be taken.
(2) A recipient who has received final written notice of termination or denial of refunding, or whose financial assistance will be suspended for more than 30 days, or who has other appealable disputes with ANA as provided by 45 CFR part 16 may request review by the Departmental Grant Appeals Board under the provisions of 45 CFR part 16.
(3) If a recipient appeals a suspension of more than 30 days which subsequently results in termination of financial assistance, both actions may be considered simultaneously by the Departmental Grant Appeals Board.
§ 1336.60   Purpose of this subpart.
(a) The Administration for Native Americans will award a five-year demonstration grant to one agency of the State of Hawaii or to one community-based Native Hawaiian organization whose purpose is the economic and social self-sufficiency of Native Hawaiians to develop procedures for and to manage a revolving loan fund for Native Hawaiian individuals and organizations in the State of Hawaii. (section 830A(a)(1))
(b) This subpart sets forth the requirements that the organization or agency selected to administer the revolving loan fund must meet and the terms and conditions applicable to loans made to borrowers from the loan fund.
§ 1336.61   Purpose of the Revolving Loan Fund.
The purpose of the Native Hawaiian Revolving Loan Fund is to provide funding not available from other sources on reasonable terms and conditions to:
(a) Promote economic activities which result in expanded opportunities for Native Hawaiians to increase their ownership of, employment in, or income from local economic enterprise;
(b) Assist Native Hawaiians to overcome specific gaps in local capital markets and to encourage greater private-sector participation in local economic development activities; and
(c) Increase capital formation and private-sector jobs for Native Hawaiians. (section 803A(a)(1)(A))
§ 1336.62   Definitions.
Applicant means an applicant for a loan from the Native Hawaiian Revolving Loan Fund. An applicant must be an individual Native Hawaiian or a Native Hawaiian organization. If the applicant is a group of people organized for economic development purposes, the applicant ownership must be 100% Native Hawaiian.
Commissioner means the Commissioner of the Administration for Native Americans.
Cooperative association means an association of individuals organized pursuant to State or Federal law, for the purpose of owning and operating an economic enterprise for profit, with profits distributed or allocated to patrons who are members of the organization.
Corporation means an entity organized pursuant to State or Federal law, as a corporation, with or without stock, for the purpose of owning and operating an economic enterprise.
Default means failure of a borrower to make scheduled payments on a loan, failure to obtain the lender's approval for disposal of assets mortgaged as security for a loan, or failure to comply with the convenants, obligations or other provisions of a loan agreement.
Economic enterprise means any Native Hawaiian-owned, commercial, industrial, agricultural or other business activity established or organized for the purpose of profit.
Financing statement means the document filed or recorded in country or State offices pursuant to the provisions of the Uniform Commercial Code as enacted by Hawaii notifying third parties that a lender has a lien on the chattel and/or crops of a borrower.
Loan Administrator means either the agency of the State of Hawaii or the community-based Native Hawaiian organization whose purpose is the economic and social self-sufficiency of Native Hawaiians selected to administer the revolving loan fund.
Mortgages mean mortgages and deeds of trust evidencing an encumbrance of trust or restricted land, mortgages and security agreements executed as evidence of liens against crops and chattels, and mortgages and deeds of trust evidencing a lien on leasehold interests.
Native Hawaiian means an individual any of whose ancestors were natives of the area which consists of the Hawaiian Islands prior to 1778.
Partnership means two or more persons engaged in the same business, sharing its profits and risks, and organized pursuant to state or Federal law.
Profits mean the net income earned after deducting operating expenses from operating revenues.
Revolving Loan Fund (RLF) means all funds that are now or are hereafter a part of the Native Hawaiian Revolving Loan Fund authorized by the Native American Programs Act of 1974, as amended in 1987, and supplemented by sums collected in repayment of loans made, including interest or other charges on loans and any funds appropriated pursuant to section 803A of the Native American Programs Act of 1974, as amended.
§ 1336.63   General responsibilities of the Loan Administrator.
(a) The Loan Administrator will make loans to Native Hawaiian organizations and to individual Native Hawaiians for the purpose or promoting economic development among Native Hawaiians in the State of Hawaii. (Section 803(a)(1)(A).)
(b) Prior to any loan being made from the RLF, the Loan Administrator will develop and obtain the Commissioner's approval of the following organizational and administrative materials necessary to implement the RLF:
(1) Goals and strategies;
(2) Staffing and organizational responsibilities;
(3) Preapplication and loan screening processes;
(4) Loan procedures including application forms;
(5) Criteria and procedures for loan review, evaluation and decision-making;
(6) Loan closing procedures; and
(7) Procedures for loan servicing, monitoring and provision of technical assistance.
(c) The Loan Administrator will set up fiscal management procedures to satisfy the requirements of section 803A of the Native American Programs Act and this subpart.
(d) The Loan Administrator must set up a separate account for the RLF into which all payments, interest, charges, and other amounts collected from loans made from the RLF will be deposited.
§ 1336.64   Development of goals and strategies: Responsibilities of the Loan Administrator.
(a) Prior to the approval of any direct loan under the RLF, the Loan Administrator will develop and obtain the Commissioner's approval for a clear and comprehensive set of goals and strategies for the RLF. The goals will specify the results the Loan Administrator expects to accomplish from the Revolving Loan Fund, define the RLF's role and responsibilities for potential users, and serve as the basis for the development of an organizational strategy and operating plan. The RLF strategies will provide the Loan Administrator with a sound understanding of the economic and market conditions within the Native Hawaiian community.
(b) The following factors shall be considered by the Loan Administrator in developing the RLF's goals:
(1) Employment needs of the local population;
(2) Characteristics of the local economic base;
(3) Characteristics of the local capital base and the gaps in the local availability of business capital;
(4) Local resources for economic development and their availability; and
(5) Goals and strategies of other local organizations involved in economic development.
(c) The loan fund strategies developed by the Revolving Loan Fund must include the following:
(1) Business Targeting Strategy: to determine which types of businesses are to be targeted by the loan fund. The Loan Administrator will develop procedures to ensure that the loans made are directed to Native Hawaiians.
(2) Financing Strategy: to determine the types of financing the loan fund will provide;
(3) Business Assistance Strategy: to identify the possible or potential management problems of a borrower and develop a workable plan for providing borrowers with the needed management assistance;
(4) Marketing Strategy: to generate applications from potential borrowers and to generate the support and participation of local financial institutions;
(5) Capital Base Management Strategy: to develop and allocate the financial resources of the fund in the most effective possible way to meet the need or demand for financing; and
(6) Accountability Strategy: to develop policies and mechanisms to hold borrowers accountable for providing the public benefits promised (e.g. jobs) in return for financing; to ensure that, until expenditure, loan proceeds are held by the borrower in secured, liquid financial instruments; to hold borrowers accountable for upholding the commitments made prior to the loan; and to develop the methods used by the RLF to enforce these commitments.
§ 1336.65   Staffing and organization of the Revolving Loan Fund: Responsibilities of the Loan Administrator.
Prior to the approval of any direct loan under the RLF, the Loan Administrator must develop and obtain the Commissioner's approval for the RLF's organization table, including:
(a) The structure and composition of the Board of Directors of the RLF;
(b) The staffing requirements for the RLF, with position descriptions and necessary personnel qualifications;
(c) The appointments to the advisory loan review committee; and
(d) The roles and responsibilities of the Board, staff and loan review committee.
§ 1336.66   Procedures and criteria for administration of the Revolving Loan Fund: Responsibilities of the Loan Administrator.
Prior to the approval of any direct loan under the RLF, the Loan Administrator must develop and obtain the Commissioner's approval for the following procedures:
(a) Preapplication and loan screening procedures. Some factors to be considered in the loan screening process are:
(1) General eligibility criteria;
(2) Potential economic development criteria;
(3) Indication of business viability;
(4) The need for RLF financing; and
(5) The ability to properly utilize financing.
(b) Application process. The application package includes forms, instructions, and policies and procedures for the loan application. The package must also include instructions for the development of a business and marketing plan and a financing proposal from the applicant.
(c) Loan evaluation criteria and procedures. The loan evaluation must include the following topics:
(1) General and specific business trends;
(2) Potential market for the product or service;
(3) Marketing strategy;
(4) Management skills of the borrower;
(5) Operational plan of the borrower;
(6) Financial controls and accounting systems;
(7) Financial projections; and
(8) Structure of investment and financing package.
(d) Loan decision-making process. Decision-making on a loan application includes the recommendations of the staff, the review by the loan review committee and the decision by the Board.
(e) Loan closing process. The guidelines for the loan closing process include the finalization of loan terms; conditions and covenants; the exercise of reasonable and proper care to ensure adherence of the proposed loan and borrower's operations to legal requirements; and the assurance that any requirement for outside financing or other actions on which disbursement is contingent are met by the borrower.
(f) Loan closing documents. Documents used in the loan closing process include:
(1) Term Sheet: an outline of items to be included in the loan agreement. It should cover the following elements:
(i) Loan terms;
(ii) Security interest;
(iii) Conditions for closing the loan;
(iv) Covenants, including reporting requirements;
(v) Representations and warranties;
(vi) Defaults and remedies; and
(vii) Other provisions as necessary.
(2) Closing Agenda: an outline of the loan documents, the background documents, and the legal and other supporting documents required in connection with the loan.
(g) Loan servicing and monitoring. The servicing of a loan will include collections, monitoring, and maintenance of an up-to-date information system on loan status.
(1) Collections: To include a repayment schedule, invoice for each loan payment, late notices, provisions for late charges.
(2) Loan Monitoring: To include regular reporting requirements, periodic analysis of corporate and industry information, scheduled telephone contact and site visits, regular loan review committee oversight of loan status, and systematic internal reports and files.
§ 1336.67   Security and collateral: Responsibilities of the Loan Administrator.
The Loan Administrator may require any applicant for a loan from the RLF to provide such collateral as the Loan Administrator determines to be necessary to secure the loan. (Section 803A(b)(3))
(a) As a Credit Factor. The availability of collateral security normally is considered an important factor in making loans. The types and amount of collateral security required should be governed by the relative strengths and weaknesses of other credit factors. The taking of collateral as security should be considered with respect to each loan. Collateral security should be sufficient to provide the lender reasonable protection from loss in the case of adversity, but such security or lack thereof should not be used as the primary basis for deciding whether to extend credit.
(b) Security Interests. Security interests which may be taken by the lender include, but are not limited to, liens on real or personal property, including leasehold interests; assignments of income and accounts receivable; and liens on inventory or proceeds of inventory sales as well as marketable securities and cash collateral accounts.
(1) Motor vehicles. Liens ordinarily should be taken on licensed motor vehicles, boats or aircraft purchased hereunder in order to be able to transfer title easily should the lender need to declare a default or repossess the property.
(2) Insurance on property secured. Hazard insurance up to the amount of the loan or the replacement value of the property secured (whichever is less) must be taken naming the lender as beneficiary. Such insurance includes fire and extended coverage, public liability, property damage, and other appropriate types of hazard insurance.
(3) Appraisals. Real property serving as collateral security must be appraised by a qualified appraiser. For all other types of property, a valuation shall be made using any recognized, standard technique (including standard reference manuals), and this valuation shall be described in the loan file.
(c) Additional security. The lender may require collateral security or additional security at any time during the term of the loan if after review and monitoring an assessment indicates the need for such security.
§ 1336.68   Defaults, uncollectible loans, liquidations: Responsibilities of the Loan Administrator.
(a) Prior to making loans from the RLF, the Loan Administrator will develop and obtain the Commissioner's approval for written procedures and definitions pertaining to defaults and collections of payments. (section 803A(b)(4))
(b) The Loan Administrator will provide a copy of such procedures and definitions to each applicant for a loan at the time the application is made. (section 803A(b)(4))
(c) The Loan Administrator will report to the Commissioner whenever a loan recipient is 90 days in arrears in the repayment of principal or interest or has failed to comply with the terms of the loan agreement. After making reasonable efforts to collect amounts payable, as specified in the written procedures, the Loan Administrator shall notify the Commissioner whenever a loan is uncollectible at reasonable cost. The notice shall include recommendations for future action to be taken by the Loan Administrator. (section 803A(c)(1) and (2))
(d) Upon receiving such notices, the Commissioner will, as appropriate, instruct the Loan Administrator:
(1) To demand the immediate and full repayment of the loan;
(2) To continue with its collection activities;
(3) To cancel, adjust, compromise, or reduce the amount of such loan;
(4) To modify any term or condition of such loan, including any term or condition relating to the rate of interest or the time of payment of any installment of principal or interest, or portion thereof, that is payable under such loan;
(5) To discontinue any further advance of funds contemplated by the loan agreement;
(6) To take possession of any or all collateral given as security and in the case of individuals, corporations, partnerships or cooperative associations, the property purchased with the borrowed funds;
(7) To prosecute legal action against the borrower or against the officers of the borrowing organization;
(8) To prevent further disbursement of credit funds under the control of the borrower;
(9) To assign or sell at a public or private sale, or otherwise dispose of for cash or credit any evidence of debt, contract, claim, personal or real property or security assigned to or held by the Loan Administrator; or
(10) To liquidate or arrange for the operation of economic enterprises financed with the revolving loan until the indebtedness is paid or until the Loan Administrator has received acceptable assurance of its repayment and compliance with the terms of the loan agreement. (Section 803A(c)(2)(B))
§ 1336.69   Reporting requirements: Responsibilities of the Loan Administrator.
(a) The Loan Administrator will maintain the following internal information and records:
(1) For each borrower: The loan repayment schedule, log of telephone calls and site visits made with the date and the items discussed, correspondence with the borrower, progress reports and analyses.
(2) Monthly status of all outstanding loans, noting all overdue payments.
(3) Monthly status of the investments of the revolving loan fund monies not currently used for loans.
(4) Monthly records on the revenue generated by the loan fund from interest charges and late charges.
(5) Monthly administrative costs of the management of the loan fund and the sources of the monies to support the administrative costs.
(b) The Loan Administrator must submit a quarterly report to the Commissioner. The report may be in a format of the choice of the Loan Administrator as long as it includes at a minimum the following topics:
(1) For each borrower:
(i) Name of the borrower;
(ii) Economic development purpose(s) of the loan;
(iii) Financing of the loan by source;
(iv) Loan status (current/delinquent/paid);
(v) Principal and interest outstanding; and
(vi) Amount delinquent/defaulted, if any.
(2) Financial status of the RLF:
(i) Administrative cost expenditures;
(ii) Level of base capital;
(iii) Level of current capital;
(iv) Amount of ANA funding;
(v) Matching share;
(vi) Other direct funding of the RLF;
(vii) Program income, including interest on loans, earnings from investments, fee charges;
(viii) Loans made;
(ix) Losses on loans;
(x) Principal and interest outstanding;
(xi) Loans repaid;
(xii) Delinquent loans; and
(xiii) Collateral position of the RLF (the value of collateral as a percent of the outstanding balance on direct loans).
(c) The Loan Administrator must submit a semi-annual report to the Commissioner containing an analysis of the RLF progress to date.
(d) The Loan Administrator must submit to the Department a quarterly SF-269, Financial Status Report, or any equivalent report required by the Department.
§ 1336.70   Technical assistance: Responsibilities of the Loan Administrator.
The Loan Administrator will assure that competent management and technical assistance is available to the borrower consistent with the borrower's knowledge and experience and the nature and complexity of the economic enterprise being financed by the RLF. Consultants, RLF staff, and members of the loan review committee and Board may be used to assist borrowers. (section 803A(d)(1)(B))
§ 1336.71   Administrative costs.
Reasonable administrative costs of the RLF may be paid out of the loan fund. The grant award agreement between the Loan Administrator and ANA will set forth the allowable administrative costs of the loan fund during the five-year demonstration period. (sections 803A(a)(2) and 803A(d)(1)(A))
§ 1336.72   Fiscal requirements.
(a) Any portion of the revolving loan fund that is not required for expenditure must be invested in obligations of the United States or in obligations guaranteed or insured by the United States.
(b) Loans made under the RLF will be for a term that does not exceed five years.
(c) No loan may be made by the RLF after November 29, 1992, the close of the five-year period of the demonstration project. (section 803A(b)(6))
(d) All monies that are in the revolving loan fund on November 29, 1992 and that are not otherwise needed (as determined by the Commissioner) to carry out the provisions of this subpart must be deposited in the Treasury of the United States as miscellaneous receipts. The Commissioner will make this determination based on reports, audits and other appropriate documents as determined by the Commissioner. The Commissioner will take into consideration the costs necessary to collect loans outstanding beyond November 29, 1992, which costs may be paid from interest and loan charges collected by the Fund and in the Fund as of November 29, 1992. To use monies in the Fund for the costs of collection after November 29, 1992, the Commissioner must give prior approval for such use.
(e) All monies deposited in the revolving loan fund after November 29, 1992 must be deposited in the Treasury of the United States as miscellaneous receipts.
(f) After November 29, 1992, the Loan Administrator will assume responsibility for the collection of all outstanding loans without additional financial assistance from ANA.
§ 1336.73   Eligible borrowers.
(a) Loans may be made to eligible applicants only if the Loan Administrator determines that the applicant is unable to obtain financing on reasonable terms and conditions from other sources such as banks, Small Business Administration, Production Credit Associations, Federal Land Banks; and
(b) Only if there is a reasonable prospect that the borrower will repay the loan. (section 803A(b)(1)(A) and (B))
(c) The Loan Administrator will determine an applicant's inability to obtain financing elsewhere on reasonable terms and conditions from documentation provided by the applicant.
(d) Those eligible to receive loans from the revolving loan fund are:
(1) Native Hawaiian individuals.
(2) Native Hawaiian non-profit organizations.
(3) Native Hawaiian businesses.
(4) Native Hawaiian cooperative associations.
(5) Native Hawaiian partnerships.
(6) Native Hawaiian associations.
(7) Native Hawaiian corporations.
§ 1336.74   Time limits and interest on loans.
(a) Loans made under the RLF will be for a term that does not exceed 5 years.
(b) Loans will be made to approved borrowers at a rate of interest that is 2 percentage points below the average market yield on the most recent public offering of United States Treasury bills occurring before the date on which the loan is made. (section 803A(b)(2)(A) and (B))
§ 1336.75   Allowable loan activities.
The following are among those activities for which a loan may be made from the RLF:
(a) The establishment or expansion of businesses engaged in commercial, industrial or agricultural activities, such as farming, manufacturing, construction, sales, service;
(b) The establishment or expansion of cooperatives engaged in the production and marketing of farm products, equipment, or supplies; the manufacture and sale of industrial, commercial or consumer products; or the provision of various commercial services;
(c) Business or job retention;
(d) Small business development;
(e) Private sector job creation; and
(f) Promotion of economic diversification, e.g. targeting firms in growth industries that have not previously been part of a community's economic base.
§ 1336.76   Unallowable loan activities.
The following activities are among those activities not eligible for support under the revolving loan fund:
(a) Loans to the Loan Administrator or any representative or delegate of the Loan Administrator (section 803A(b)(5));
(b) Loans which would create a potential conflict-of-interest for any officer or employee of the Loan Administrator; loan activities which directly benefit these individuals, or persons related to them by marriage, or law.
(c) Eligible activities which are moved from the State of Hawaii;
(d) Investing in high interest account, certificates of deposit or other investments;
(e) Relending of the loan amount by the borrower;
(f) The purchase of land or buildings;
(g) The construction of buildings; and
(h) Purchasing or financing equity in private businesses.
§ 1336.77   Recovery of funds.
(a) Funds provided under this Subpart may be recovered by the Commissioner for both costs of administration of the Loan Fund and losses incurred by the Fund (hereafter jointly referred to as “costs”) under the following circumstances:
(1) Whenever claimed costs are unallowable under the Native Americans Programs Act of 1974, as amended, or under 45 CFR part 75, subpart E, or both;
(2) For costs for loans made to ineligible persons or entities as defined in § 1336.73;
(3) For costs connected with the default of a borrower when the Loan Administrator has failed to perfect any security interest or when the Loan Administrator has failed to obtain collateral when provision of collateral is a condition of a loan.
(4) For costs connected with any default when the Loan Administrator has failed to perform a proper check of an applicant's credit;
(5) For costs whenever the Loan Administrator has failed to notify the Commission of loans at risk as required by § 1336.68 of these regulations, and as may be required by the procedures approved pursuant to that regulation;
(6) For costs whenever the Loan Administrator has failed to follow properly instructions provided to it by the Commissioner pursuant to § 1336.68(d) of these regulations;
(7) For costs which are incurred due to faulty record keeping, reporting, or both; or
(8) For costs which are in connection with any activity or action which violates any Federal or State law or regulation not specifically identified in these regulations.
(b) Whenever the Commissioner determines that funds have been improperly utilized or accounted for, he will issue a disallowance pursuant to the Act and to 45 CFR part 75 and will notify the Loan Administrator of its appeal rights, which appeal must be taken pursuant to 45 CFR part 16.
(c) If a disallowance is taken and not appealed, or if it is appealed and the disallowance is upheld by the Departmental Grant Appeals Board, the Loan Administrator must repay the disallowed amount to the Loan Fund within 30 days, such repayment to be made with non-Federal funds.