[Federal Register Volume 60, Number 77 (Friday, April 21, 1995)]
[Proposed Rules]
[Pages 19994-19997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9914]




[[Page 19993]]

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Part III





Department of Health and Human Services





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Administration for Children and Families



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45 CFR Part 1336



Native American Programs; Proposed Rule

Federal Register / Vol. 60, No 77 / Friday, April 21, 1995 / Proposed 
Rules  
[[Page 19994]] 

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1336

RIN 0970-AB37


Native American Programs

AGENCY: Administration for Native Americans, Administration for 
Children and Families, HHS.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: On September 30, 1992, the Congress passed the Older Americans 
Act Amendments of 1992, amending the Native American Programs Act of 
1974. In accordance with these amendments, the Administration for 
Native Americans (ANA) is proposing to amend 45 CFR part 1336 to 
incorporate an appeals procedure for ANA ineligible applications. This 
action affords the applicants in ANA grant program announcement areas 
the opportunity to appeal the rejection of an application based on a 
finding that either the applicant or the proposed activities are 
ineligible for funding. A successful appeal would lead to 
reconsideration of the application in the next cycle of grant proposals 
following the Assistant Secretary's determination to uphold the appeal. 
It does not guarantee ANA approval for grant funding.

dates: Interested parties are invited to comment on these proposed 
amendments. Comments must be submitted on or before June 20, 1995.

addresses: Submit comments on the proposed rule, in duplicate, to: 
Administration for Native Americans, ATTN: INELIGIBILITY APPEAL, Room 
348-F, HHH Bldg., 200 Independence Avenue, SW., Washington, DC 20201-
0001.
    Two weeks after close of the comment period, comments and letters 
will be available for public inspection in Room 348-F, Hubert H. 
Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201, 
Monday through Friday, 7:30 a.m. to 3:30 p.m., telephone (202) 690-
7730.

for further information contact: Sharon McCully (202) 690-5780.

SUPPLEMENTARY INFORMATION:

I. Program Description

    In 1974, the Native American Programs Act (the Act) was enacted as 
Title VIII of the Economic Opportunity Act of 1964, (Pub. L. 93-644) 
(42 U.S.C. 2991a et seq.) to promote the goal of social and economic 
self-sufficiency for American Indians, Alaska Natives, and Native 
Hawaiians. The legislation was subsequently amended by the Older 
Americans Act Amendments of 1987 (Pub. L. 100-175), which extended 
eligibility to Native American Pacific Islanders (including American 
Samoan Natives), and the Indian Environmental Regulatory Enhancement 
Act of 1990 (Pub. L. 101-408). Most recently it was amended by the 
Older Americans Act Amendments of 1992, (Pub. L. 102-375); the Native 
American Languages Act of 1992, (Pub. L. 102-524); Technical Amendments 
to Certain Indian Statutes, 1992, (Pub. L. 102-497); and the Older 
Americans Act Technical Amendments of 1993 (Pub. L. 103-171).

Background

    Financial assistance provided by ANA, under the Act, is designed to 
promote the goal of social and economic self-sufficiency for American 
Indians, Alaska Natives, Native Hawaiians, and Native American Pacific 
Islanders through programs and projects that: (1) Advance locally 
developed social and economic development strategies (SEDS) and 
strengthen local governance capabilities as authorized by Sec. 803(a); 
(2) preserve Native American languages authorized by Sec. 803C; (3) 
improve the capability of the governing body of the Indian tribe to 
regulate environmental quality authorized by Sec. 803(d); and (4) 
mitigate the environmental impacts to Indian lands due to Department of 
Defense activities. The funding for the mitigation of environmental 
impacts to Indian lands due to Department of Defense activities is 
authorized by Sec. 809A of the Department of Defense Appropriations 
Act, 1994 (Pub. L. 103-139). The Act also authorizes a Hawaiian Loan 
Program in Sec. 803A. Under this program, ANA makes grants to the 
Office of Hawaiian Affairs of the State of Hawaii to support a 
revolving loan fund. Because of the unique nature of this program an 
appeal is unlikely to arise under it, and for this reason ANA has not 
addressed the question of eligibility of organizations or activities 
under this program in the regulations.

II. Discussion of Proposed Regulations

    These proposed regulations are to establish new procedures mandated 
by reauthorization legislation, the Older Americans Act Amendments of 
1992 (Pub. L. 102-375, Title VIII, Subtitle C; ``Native American 
Programs Act Amendments of 1992''). The proposed regulations would add 
three new sections to 45 CFR part 1336, subpart C, that would list the 
categories of eligible applicants and activities that are ineligible, 
Sec. 1336.33, requirements for the notice of ineligibility, 
Sec. 1336.34, and the procedures for appeal of such a determination, 
Sec. 1336.35.
    A successful appeal under Sec. 1336.35 would lead to 
reconsideration of the application in the next cycle of grant 
proposals. It does not guarantee ANA approval for grant funding. 
Furthermore, the decision that an application is deficient by ANA prior 
to competitive panel review for reasons other than applicant 
ineligibility or the ineligibility of proposed activities is not 
appealable under this section and in accordance with section 810(b) of 
the Act. The decision not to fund an application because it fails the 
competitive review panel also is not appealable under this section.

Section-by-Section Discussion of the Proposed Changes

    In subpart C, part 1336, Native American Projects, we are proposing 
to include a new Sec. 1336.33, Ineligible applicants and proposed 
activities which are ineligible. This section lists the categories of 
organizations which are eligible for four of the grant programs 
administered by ANA. An organization not within the categories 
specified for a program is not eligible to receive funding under that 
program.
    The provision also lists activities which, based upon its 
experience in administering the program, ANA has declined to fund in 
the past. The Agency has found that these activities are by their 
nature of limited or no value in furthering the goals of the respective 
grant programs administered by ANA.
    Paragraph (a)(1) lists categories of applicants eligible to apply 
for SEDS and Preservation and Enhancement of Native American Language 
grants. The categories are in accordance with Section 803(a) of the 
Native American Programs Act, as amended, and Section 803C, which 
provides that organizations eligible under Section 803(a) are also 
eligible for grants under the Native American languages program. The 
following are some examples of the eligible organizations listed in 
paragraph (a)(1): Federally recognized Indian Tribes; urban Indian 
Centers; consortia of Indian Tribes; Alaska Native villages as defined 
by the Alaska Native Claims Settlement Act (ANCSA) and/or nonprofit 
village consortia; public and nonprofit private agencies serving native 
people from Guam, American Samoa, Palau, or the Commonwealth of the 
Northern Mariana Islands; public and nonprofit private agencies serving 
Native Hawaiians; and incorporated non-Federally recognized Tribes.
[[Page 19995]]

    Under the SEDS program, applications submitted by organizations 
applying to serve members of a Federally recognized tribe must be 
submitted through the tribe. This interpretation of the requirements of 
section 803(a) of the Act reflects the legal principle that Indian 
tribes possess inherent governmental power over all internal affairs. 
See, for example, Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 
(1982) (Tribe has inherent power to impose severance tax on mining 
activities). Attributes of sovereign authority of tribes extends over 
both their members and territory, except where that authority has been 
withdrawn or modified by treaty or Federal statute. Iowa Mutual 
Insurance Co. v. LaPlante, 480 U.S. 9, 14 (1987). Tribes generally 
retain sovereignty by way of tribal self-government and control over 
other aspects of its internal affairs. Brendale v. Confederated Tribes 
and Band of Yakima, 109 S. Ct. 2994 (1989). When the eligibility 
requirements of section 803(a) are applied to organizations serving 
members of a Federally recognized tribe through activities within its 
jurisdiction it is appropriate to interpret the requirements in light 
of the principle that tribes have an inherent authority over their 
internal affairs and over their members. To do otherwise would 
undermine the ability of tribes to exercise that authority. It is also 
particularly important in such circumstances to have the support of the 
tribal government since the grant is intended to further the social and 
economic development of the tribe and its members.
    The requirements of paragraph (a)(1) set forth ANA's interpretation 
of the eligibility requirements of section 803(a) of the Act. The 
Agency proposes to remove 45 CFR 1336.30(a) which restates the language 
of the statute. Continued use of this provision in the regulations 
would cause confusion. In addition, ANA is removing 45 CFR 1336.30(c) 
which provides that projects in American Samoa, Guam and the Northern 
Mariana Islands receive funding under Sec. 803 ``subject to the 
availability of funds.'' This provision was based upon a requirement in 
section 803(a) which was deleted in 1992 by Public Law 102-497.
    Paragraph (a)(2) lists 5 categories of applicants eligible to apply 
for funds provided by the Department of Defense (DoD) and ANA for the 
purpose of mitigating environmental impacts on Indian Lands related to 
DoD activities. This list was derived from the Environmental Mitigation 
Program Announcement as published in the Federal Register: Availability 
of Financial Assistance; (58 FR 69106; December 29, 1993). ANA does not 
interpret Section 810(b) of the Act as requiring that applicants under 
the DoD program have a right to appeal rulings of ineligibility; 
however the Agency has decided as a matter of policy to include this 
program under the regulations.
    Paragraph (a)(3) lists 5 categories of applicants eligible to apply 
for funds for the improvement of the capability of tribal governing 
bodies to regulate environmental quality. The eligible categories of 
organizations are: (1) Federally recognized Indian Tribes; (2) 
incorporated non-Federally and State recognized Tribes; (3) consortia 
of Indian Tribes; (4) Alaska Native villages as defined by the Alaska 
Native Claims Settlement Act (ANCSA) and/or nonprofit village 
consortia; (5) Tribal governing bodies (Indian Reorganization Act (IRA) 
or traditional councils) as recognized by the Bureau of Indian Affairs. 
The list of 5 categories are derived from the recent program 
announcement: Availability of Financial Assistance for Improving the 
Capability of Indian Tribal Governments to Regulate Environmental 
Quality (59 FR 16650, April 7, 1994).
    The regulations do not include a list of organizations eligible for 
grants authorized by Sec. 805 of the Act, which authorizes grants for 
research, demonstration and pilot projects. ANA is not currently 
awarding grants under this provision, nor does it have plans to do so. 
If, at some point in the future, it does issue an announcement for 
funding under section 805, the Agency will state which categories of 
organizations and the types of activities are eligible for funding. 
Applicants for funding under Sec. 805 which wish to appeal the 
rejection of an application based on a finding that either the 
applicant or the proposed activities are ineligible for funding will be 
able to do so by submitting an appeal as provided for by the proposed 
45 CFR 1336.35.
    Paragraph (b) provides a nonexclusive list of 7 activities that are 
ineligible for funding under programs authorized by the Native American 
Programs Act of 1974. (It is impossible to list all activities that 
would be considered eligible.) With the exception of one activity, the 
purchase of real estate, which is prohibited by law, the remaining 6 
listed are derived from ANA's past experiences in managing grants and 
working with organizations, both public and private. Several examples 
of these are:

    (a) Projects in which a grantee would provide training and/or 
technical assistance (T/TA) to other tribes or Native American 
organizations (``third party T/TA''). However, the purchase of T/TA 
by a grantee for its own use or for its members' use (as in the case 
of a consortium), where T/TA is necessary to carry out project 
objectives, is acceptable. Third party T/TA is not an eligible 
activity because ANA believes it is inefficient to fund 
organizations which would otherwise be able to apply directly to ANA 
for TA funding;
    (b) Projects that request funds for feasibility studies, 
business plans, marketing plans or written materials, such as 
manuals, that are not an essential part of the applicant's SEDS 
long-range development plan. ANA is not interested in funding ``wish 
lists'' of business possibilities. This policy reflects ANA's belief 
that the limited amount of funds available to the Agency is better 
used to support activities which directly affect the well-being of 
the members of Native American communities;
    (c) The support of on-going social service delivery programs or 
the expansion, or continuation, of existing social service delivery 
programs. This area is covered by other Federal programs and would 
result in a duplicative effort by ANA; and
    (d) Core administration functions, or other activities, that 
essentially support only the applicant's on-going administrative 
functions. ANA funds are used for specific products that become 
self-sustaining and not for the on-going administration of Tribes or 
organizations. This policy reflects ANA's goal of husbanding the 
scare resources available to it.

    In Sec. 1336.34, Notice of ineligibility, we propose that upon a 
finding by the Commissioner that an organization which has applied for 
funding is ineligible or that the activities proposed by an 
organization are ineligible, the Commissioner shall inform the 
applicant, by certified letter, of the decision. The notice must 
include a statement of the legal and factual grounds for the finding 
concerning eligibility, a copy of these regulations, and the statement 
regarding how to appeal the decision.
    In Sec. 1336.35, Appeal of ineligibility, we propose to establish 
the procedures an applicant must follow when seeking to appeal the ANA 
Commissioner's determination that an applicant, or proposed activities, 
are rejected on grounds of ineligibility. This section describes the 
steps that apply when seeking such an appeal. In accordance with the 
Native Americans Programs Act, Section 810(b), the applicant may make 
an appeal to the Secretary for review of the determination of 
ineligibility. The Secretary has delegated the authority for review of 
appeals made under section 810(b) to the Assistant Secretary for 
Children and Families. Under this section, the applicant has 30 days 
following receipt of ineligibility notification to appeal, in writing, 
the Commissioner's ruling. The [[Page 19996]] appeal must clearly 
identify the issues. The Assistant Secretary may appoint an individual 
who is not a member of the staff of the Administration for Native 
Americans to develop the record in the appeal and to recommend a 
decision. The Assistant Secretary or his or her designee shall give the 
Commissioner 21 days to respond to the applicant's submission and allow 
the applicant to respond to the Commissioner's submission within 10 
days of its receipt by the applicant. The individual presiding over the 
appeal may request the parties to submit additional information within 
a specified time period before closing the record in the appeal. The 
Assistant Secretary will provide a final written decision within 30 
days of the closing of the record. If a determination is made by the 
Assistant Secretary that the applicant or application is eligible, as 
required by law, the eligibility will not take effect until the next 
cycle of grant proposals are considered by ANA.

III. Impact Analysis

Executive Order 12866

    Executive Order 12866 requires that regulations be drafted to 
ensure that they are consistent with the priorities and principles set 
forth in the Executive Order. The Department has determined that this 
rule is consistent with these priorities and principles.
    The NPRM amends the current rules to establish an appeal procedure 
authorized by the Older Americans Act Amendments of 1992. It adds three 
new sections to 45 CFR part 1336 that list the categories of eligible 
applicants and ineligible activities, set forth requirements for the 
notice of ineligibility, and establish procedures on how to appeal 
determinations of ineligibility made by the Commissioner, ANA. The NPRM 
also deletes existing provisions from the regulations that are no 
longer applicable or are rendered obsolete by the proposed provisions. 
We estimate that these regulations will not result in significant 
additional costs to the Federal Government or Native American programs.

Regulatory Flexibility Act of 1980

    Consistent with the Regulatory Flexibility Act (5 U.S.C. Ch. 6), we 
try to anticipate and reduce the impact of rules and paperwork 
requirements on small businesses. For each rule with a ``significant 
economic impact on a substantial number of small entities,'' we prepare 
an analysis describing the rule's imapct on small entities. Small 
entities are defined by the Act to include small businesses, small non-
profit organizations and small governmental entities. While this rule 
would affect small entities, i.e., Alaskan Native villages and non-
profit organizations, the impact should be minimal. The only 
requirement imposed on small entities is for applicant organizations to 
submit written appeals. For these reasons, the Secretary certifies that 
these rules will not have a significant impact on a substantial number 
of small entities.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1980, Public Law 96-511, all 
Departments are required to submit to the Office of Management and 
Budget (OMB) for review and approval any reporting or recordkeeping 
requirement contained in a proposed or final rule. This NPRM does not 
contain any reporting or recordkeeping requirements, thus, no 
submission to OMB is required.

List of Subjects in 45 CFR Part 1336

    Administrative practice and procedure, American Samoa, Appeals 
Grant programs--Indians, Grant programs-social programs, Guam, Indians, 
Native Hawaiians, Northern Mariana Islands, Reporting and recordkeeping 
requirements.

(Catalog of Federal Domestic Assistance Program Number 93.612 Native 
American Programs)

    Approved: April 4, 1995.
Mary Jo Bane,
Assistant Secretary for Children and Families.

    For the reasons set forth in the preamble, 45 CFR part 1336 is 
proposed to be amended as follows:
SUBCHAPTER D--THE ADMINISTRATION FOR NATIVE AMERICANS, NATIVE AMERICAN 
PROGRAMS

PART 1336--NATIVE AMERICAN PROGRAMS

    The authority citation for part 1336 continues to read as follows:

    Authority: 42 U.S.C. 2991 et seq.

    2. Section 1336.30 is amended by removing paragraphs (a) and (c) 
and removing the designation (b) from the remaining paragraph.
    3. Sections 1336.33, 1336.34, and 1336.35 are added to read as 
follows:


Sec. 1336.33  Eligible applicants and proposed activities which are 
ineligible.

    (a) Eligibility for the listed programs is restricted to the 
following specified categories of organizations. In addition, 
applications under the SEDS program from an organization serving 
members of a Federally recognized tribe must be submitted through the 
tribe.
    (1) Social and Economic Development Strategies (SEDS) and 
Preservation and Enhancement of Native American Languages:
    (i) Federally recognized Indian Tribes;
    (ii) Consortia of Indian Tribes;
    (iii) Incorporated non-Federally recognized Tribes;
    (iv) Incorporated nonprofit multipurpose community-based Indian 
organizations;
    (v) Urban Indian Centers;
    (vi) Public and nonprofit private agencies serving native 
Hawaiians;
    (vii) National and regional incorporated nonprofit Native American 
organizations with Native American community-specific objectives;
    (viii) Public and nonprofit private agencies serving native peoples 
from Guam, American Samoa, Palau, or the Commonwealth of the Northern 
Mariana Islands;
    (ix) Alaska Native villages as defined by the Alaska Native Claims 
Settlement Act (ANCSA) and/or nonprofit village consortia;
    (x) Incorporated nonprofit Alaska Native multipurpose community-
based organizations;
    (xi) Nonprofit Alaska Native Regional Associations in Alaska with 
village specific projects;
    (xii) Nonprofit Native organizations in Alaska with village 
specific projects; and
    (xiii) Nonprofit Alaska Native community entities or tribal 
governing bodies (Indian Reorganization Act or traditional councils) as 
recognized by the Bureau of Indian Affairs.
    (2) Mitigation of Environmental Impacts to Indian Lands Due to 
Department of Defense Activities:
    (i) Federally recognized Indian Tribes;
    (ii) Incorporated non-Federally and State recognized Tribes;
    (iii) Nonprofit Alaska Native community entities or tribal 
governing bodies (Indian Reorganization Act (IRA) or traditional 
councils) as recognized by the Bureau of Indian Affairs;
    (iv) Nonprofit Alaska Native Regional Associations and/or 
Corporations with village specific projects; and
    (v) Other tribal or village organizations or consortia of Indian 
Tribes.
    (3) Improvement of the capability of tribal governing bodies to 
regulate environmental quality:
    (i) Federally recognized Indian Tribes;
    (ii) Incorporated non-Federally and State recognized Tribes;
    (iii) Consortia of Indian Tribes;
    (iv) Alaska Native villages as defined by the Alaska Native Claims 
Settlement [[Page 19997]] Act (ANCSA) and/or nonprofit village 
consortia;
    (v) Tribal governing bodies (IRA or traditional councils) as 
recognized by the Bureau of Indian Affairs.
    (b) The following is a nonexclusive list of activities that are 
ineligible for funding under programs authorized by the Native American 
Programs Act of 1974:
    (1) Projects in which a grantee would provide training and/or 
technical assistance (T/TA) to other tribes or Native American 
organizations (``third party T/TA''). However, the purchase of T/TA by 
a grantee for its own use or for its members' use (as in the case of a 
consortium), where T/TA is necessary to carry out project objectives, 
is acceptable;
    (2) Projects that request funds for feasibility studies, business 
plans, marketing plans or written materials, such as manuals, that are 
not an essential part of the applicant's SEDS long-range development 
plan;
    (3) The support of ongoing social service delivery programs or the 
expansion, or continuation, of existing social service delivery 
programs;
    (4) Core administration functions, or other activities, that 
essentially support only the applicant's ongoing administrative 
functions;
    (5) The conduct of activities which are not responsive to one or 
more of the three interrelated ANA goals (Governance Development, 
Economic Development, and Social Development);
    (6) Proposals from consortia of tribes that are not specific with 
regard to support from, and roles of member tribes. An application from 
a consortium must have goals and objectives that will create positive 
impacts and outcomes in the communities of its members. ANA will not 
fund activities by a consortium of tribes which duplicates activities 
for which member tribes also receive funding from ANA; and
    (7) The purchase of real estate.


Sec. 1336.34  Notice of ineligibility.

    (a) Upon a finding by the Commissioner that an organization which 
has applied for funding is ineligible or that the activities proposed 
by an organization are ineligible, the Commissioner shall inform the 
applicant by certified letter of the decision.
    (b) The letter must include the following:
    (1) The legal and factual grounds for the Commissioner's finding 
concerning eligibility;
    (2) A copy of these regulations; and
    (3) The following statement: This is the final decision of the 
Commissioner, Administration for Native Americans. It shall be the 
final decision of the Department unless, within 30 days after receiving 
this decision as provided in section 810(b) of the Native American 
Programs Act of 1974, as amended, and 45 CFR part 1336, you deliver or 
mail (you should use registered or certified mail to establish the 
date) a written notice of appeal to the Assistant Secretary for 
Children and Families, 370 L'Enfant Promenade, S.W., Washington, D.C. 
20447. You shall attach to the notice a copy of this decision and note 
that you intend an appeal. The appeal must clearly identify the 
issue(s) in dispute and contain a full statement of the applicant's 
position on such issue(s) along with pertinent facts and reasons in 
support of the position. We are enclosing a copy of 45 CFR part 1336 
which governs the conduct of appeals under section 810(b). For 
additional information on the appeals process see 45 CFR 1336.35.


Sec. 1336.35  Appeal of ineligibility.

    The following steps apply when seeking an appeal on a finding of 
ineligibility for funding:
    (a) An applicant, which has had its application rejected either 
because it has been found ineligible or because the activities it 
proposes are ineligible for funding by the Commissioner of ANA, may 
appeal the Commissioner's ruling to the Assistant Secretary for 
Children and Families, in writing, within 30 days following receipt of 
ineligibility notification. Written notification as described above 
will be served on the applicant by certified mail.
    (b) The appeal must clearly identify the issue(s) in dispute and 
contain a full statement of the applicant's position on such issue(s) 
along with pertinent facts and reasons in support of the position.
    (c) Upon receipt of appeal for reconsideration of a rejected 
application or activities proposed by an applicant, the Assistant 
Secretary will notify the applicant by certified mail that the appeal 
has been received.
    (d) The Assistant Secretary may appoint an individual who is not a 
member of the staff of the Administration for Native Americans to 
develop the record in the appeal and to recommend a decision.
    (e) The Assistant Secretary or his or her designee shall give the 
Commissioner 21 days to respond to the applicant's submission under 
paragraph (a) of this section.
    (f) The Assistant Secretary or his or her designee shall allow the 
applicant to respond to the Commissioner's submission within 10 days of 
its receipt by the applicant, and may request the parties to submit 
additional information within a specified time period before closing 
the record in the appeal.
    (g) The Assistant Secretary will review the record in the appeal 
and provide a final written decision within 30 days following the 
closing of the record.
    (h) If the Assistant Secretary determines that the applicant is 
eligible or that the activities proposed by the applicant are eligible 
for funding, such eligibility shall not be effective until the next 
cycle of grant proposals are considered by the Administration for 
Native Americans.

[FR Doc. 95-9914 Filed 4-20-95; 8:45 am]
BILLING CODE 4184-01-M