Native American Programs

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]

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