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

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).

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 § 803(a);

(2) preserve Native American languages

authorized by § 803C; (3) improve the

capability of the governing body of the

Indian tribe to regulate environmental

quality authorized by § 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

§ 809A of the Department of Defense

Appropriations Act, 1994 (Pub. L. 103–

139). The Act also authorizes a

Hawaiian Loan Program in § 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, § 1336.33, requirements for

the notice of ineligibility, § 1336.34, and

the procedures for appeal of such a

determination, § 1336.35.

A successful appeal under § 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 § 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.
Federal Register / Vol. 60, No 77 / Friday, April 21, 1995 / Proposed Rules 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 § 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 § 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

§ 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 § 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 § 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
19996 Federal Register / Vol. 60, No 77 / Friday, April 21, 1995 / Proposed Rules

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 nonprofit 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:

§ 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
Federal Register / Vol. 60, No 77 / Friday, April 21, 1995 / Proposed Rules 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.

§ 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.

§ 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]

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