Native American Programs

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1336

RIN 0970-AB37

Native American Programs

AGENCY: Administration for Native Americans, Administration for

Children and Families, HHS.

ACTION: Final rule.

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SUMMARY: On September 30, 1992, the Congress passed the Older Americans

Act Amendments of 1992 (Pub. L. 102-375), amending the Native American

Programs Act of 1974. In accordance with these amendments, the

Administration for Native Americans (ANA) is amending 45 CFR Part 1336

to incorporate an appeals procedure for ANA ineligible applications.

This action affords the applicants in ANA grant program announcement

areas the opportunity to appeal the rejection of an application based

on a finding that either the applicant or the proposed activities are

ineligible for funding. A successful appeal would lead to

reconsideration of the application in the next cycle of grant proposals

following the HHS Departmental Appeals Board's determination to uphold

the appeal. It does not guarantee ANA approval for grant funding.

EFFECTIVE DATE: September 18, 1996.

FOR FURTHER INFORMATION CONTACT: R. Denise Rodriguez (202) 690-6265,

Department of Health and Human Services, Administration for Children

and Families, 200 Independence Avenue SW., Room 348-F, Washington, DC

20201-0001.

SUPPLEMENTARY INFORMATION:

I. Program Description

In 1974, the Native American Programs Act (the Act) was enacted as

Title VIII of the Economic Opportunity Act of 1964, (Pub. L. 93-644)

(42 U.S.C. 2991a et seq.) to promote the goal of social and economic

self-sufficiency for

[[Page 42818]]

American Indians, Alaska Natives, and Native Hawaiians. The legislation

was subsequently amended by the Older Americans Act Amendments of 1987

(Pub. L. 100-175), which extended eligibility to Native American

Pacific Islanders (including American Samoan Natives), and the Indian

Environmental Regulatory Enhancement Act of 1990 (Pub. L. 101-408) and

the Indian Reorganization Act Amendments (Pub. L. 100-581). Most

recently it was amended by the Older Americans Act Amendments of 1992

(Pub. L. 102-375); the Native American Languages Act of 1992 (Pub. L.

102-524); Technical Amendments to Certain Indian Statutes, 1992 (Pub.

L. 102-497); and the Older Americans Act Technical Amendments of 1993

(Pub. L. 103-171).

Background

Financial assistance provided by ANA, under the Act, is designed to

promote the goal of social and economic self-sufficiency for American

Indians, Alaska Natives, Native Hawaiians, and Native American Pacific

Islanders through programs and projects that: (1) Advance locally

developed social and economic development strategies (SEDS) and

strengthen local governance capabilities as authorized by Sec. 803(a);

(2) preserve Native American languages authorized by Sec. 803C; (3)

improve the capability of the governing body of the Indian tribe to

regulate environmental quality authorized by Sec. 803(d); and (4)

mitigate the environmental impacts to Indian lands due to Department of

Defense activities. The funding for the mitigation of environmental

impacts to Indian lands due to Department of Defense activities is

authorized by Sec. 8094A of the Department of Defense Appropriations

Act, 1994 (Pub. L. 103-139), and Sec. 8094A, the Department of Defense

Appropriations Act, 1995 (Pub. L. 103-335). The Act also authorizes a

Hawaiian Loan Program in Sec. 803A. Under this program, ANA makes

grants to the Office of Hawaiian Affairs of the State of Hawaii to

support a revolving loan fund. Because of the unique nature of this

program, an appeal is unlikely to arise under it, and for this reason

ANA has not addressed the question of eligibility of organizations or

activities under this program in the regulations.

II. Discussion of Final Rule

A Notice of Proposed Rulemaking (NPRM) was published in the Federal

Register on April 21, 1995 (60 FR 19994). No comments were received.

However, we have made changes to the final rule for the benefit of all

parties concerned. We now identify the Departmental Appeals Board (DAB)

as the body that is delegated the authority to review appeals instead

of the Assistant Secretary for Children and Families as set forth in

the NPRM. On reconsideration of the NPRM, we determined that it would

be logical for the DAB to hear ANA grants eligibility determination

appeals, since the DAB already handles appeals regarding various grant

programs administered by the Department, including appeals of

terminations, suspensions and denials of refunding under ANA grant

programs pursuant to 45 CFR 1336.52(c)(2). Accordingly, the Assistant

Secretary has delegated the appeals process to the DAB. The Assistant

Secretary's delegation to the DAB strengthens the appeals process and

affords administrative convenience, beneficial to all parties

concerned. For purposes of clarification, we have revised our

descriptions of eligible applicants as described below.

Tribally Controlled Community Colleges, Tribally Controlled Post-

Secondary Vocational Institutions, and colleges and universities

located in Hawaii, Guam, American Samoa, Palau, or the Commonwealth of

the Northern Mariana Islands which serve Native American Pacific

Islanders were added under 45 CFR 1336.33(a)(1) to the list of

organizations eligible for funding under the Social and Economic

Development Strategies (SEDS) and Preservation and Enhancement of

Native American Languages programs. This new category of organizations

was added to make it clear that such organizations are eligible to

apply for funding under these programs. These organizations would have

qualified under the proposed categories, but the addition of this

category will clearly establish the eligibility of such organizations.

The final regulations include a separate listing at Sec. 1336.33(a)(2)

of eligible organizations for the Alaska-Specific Social and Economic

Development Strategies (SEDS) Projects. These organizations were listed

under the eligible organizations for the SEDS program. The separate

listings are necessary because Alaskan organizations can elect to apply

under either the SEDS competition or the Alaska-Specific Social and

Economic Development Strategies Project. In the final rule,

Sec. 1336.33(a)(4), which was (a)(3) in the NPRM, we have added

Nonprofit Alaska Native Regional Corporations/Associations with

village-specific projects and other tribal or village organizations or

consortia of Indian tribes to the list of eligible organizations for

the program on the improvement of the capability of tribal governing

bodies to regulate environmental quality. We added these categories in

recognition of the possibility that such organizations performed

similar functions to the organizations listed in the NPRM.

The final rule establishes new procedures mandated by

reauthorization legislation, the Older Americans Act Amendments of 1992

(Pub. L. 102-375, Title VIII, Subtitle C; ``Native American Programs

Act Amendments of 1992''). The rule adds three new sections to 45 CFR

Part 1336, Subpart C that lists the categories of eligible applicants

and activities that are ineligible, Sec. 1336.33, requirements for the

notice of ineligibility, Sec. 1336.34, and the procedures for appeal of

such a determination, Sec. 1336.35. Appeals will be governed by the

Departmental Appeals Board regulations at 45 CFR Part 16, except as

otherwise provided in these regulations.

A successful appeal under Sec. 1336.35 would lead to

reconsideration of the application in the next cycle of grant

proposals. It does not guarantee ANA approval for grant funding.

Furthermore, the decision that an application is deficient by ANA prior

to competitive panel review for reasons other than applicant

ineligibility or the ineligibility of proposed activities is not

appealable under this section and in accordance with Sec. 810(b) of the

Act. The decision not to fund an application because it fails the

competitive review panel also is not appealable under this section.

Section by Section Discussion of the Final Rule

In Subpart C, Part 1336, Native American Projects, we are including

a new Sec. 1336.33, ``Eligible applicants and proposed activities which

are ineligible''. This section lists the categories of organizations

which are eligible for four of the grant programs administered by ANA.

An organization not within the categories specified for a program is

not eligible to receive funding under that program.

The provision also lists activities which, based upon its

experience in administering the program, ANA has declined to fund in

the past. The Agency has found that these activities are by their

nature of limited or no value in furthering the goals of the respective

grant programs administered by ANA.

Paragraph (a)(1) lists categories of applicants eligible to apply

for SEDS and Preservation and Enhancement of Native American Language

grants. The categories are in accordance with Section 803(a) of the

Native American Programs Act, as amended, and Section

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803C, which provides that organizations eligible under Section 803(a)

are also eligible for grants under the Native American languages

program. The following are some examples of the eligible organizations

listed in paragraph (a)(1): Federally recognized Indian Tribes; urban

Indian Centers; consortia of Indian Tribes; Alaska Native villages as

defined by the Alaska Native Claims Settlement Act (ANCSA) and/or

nonprofit village consortia; public and nonprofit private agencies

serving native peoples from Guam, American Samoa, Palau, or the

Commonwealth of the Northern Mariana Islands; public and nonprofit

private agencies serving Native Hawaiians; and incorporated non-

Federally recognized Tribes.

Applications from tribal components which are tribally-authorized

divisions of a larger tribe must be approved by the governing body of

the Tribe. This interpretation of the requirements of the Act reflects

the legal principle that Indian Tribes possess inherent governmental

power over all internal affairs. See for example, Merrion v. Jicarilla

Apache Tribe, 455 U.S. 130 (1982) (Tribe has inherent power to impose

severance tax on mining activities). Attributes of sovereign authority

of tribes extends over both their members and territory, except where

that authority has been withdrawn or modified by treaty or Federal

statute. Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 14 (1987).

Tribes generally retain sovereignty by way of tribal self-government

and control over other aspects of its internal affairs. Brendale v.

Confederated Tribes and Band of Yakima, 109 S. Ct. 2994 (1989). When

the eligibility requirements of Sec. 803(a) are applied to such

organizations it is appropriate to interpret the requirements in light

of the principle that tribes have an inherent authority over their

internal affairs and over their members. To do otherwise would

undermine the ability of tribes to exercise that authority. It is also

particularly important in such circumstances to have the support of the

tribal government since the grant is intended to further the social and

economic development of the tribe and its members.

ANA also has included in the final rule a requirement for its

programs that ``[a]pplicants, other than tribes or Alaska Native

Village governments, proposing a project benefiting Native Americans or

Native Alaskans, or both, must provide assurance that its duly elected

or appointed board of directors is representative of the community to

be served.'' We believe this requirement is consistent with the NPRM

which made it clear from the proposed list of eligible organizations

that in order to be eligible an organization had to be in some way

representative of a Native American community. The requirement for an

assurance of the representativeness of the organizations's board is

only an elaboration of the existing requirement.

The requirements of paragraph (a)(1) set forth ANA's interpretation

of the eligibility requirements of Sec. 803(a) of the Act. The Agency

has removed 45 CFR 1336.30(a) which restated the language of the

statute. Continued use of that provision in the regulations would have

caused confusion. In addition, ANA has removed 45 CFR 1336.30(c) which

provided that projects in American Samoa, Guam and the Northern Mariana

Islands received funding under Sec. 803 ``subject to the availability

of funds.'' This provision was based upon a requirement in Sec. 803(a)

which was deleted in 1992 by Pub. L. 102-497. In accordance with these

removals, the heading of Sec. 1336.30 has been changed to ``Eligibility

under sections 804 and 805 of the Native American Programs Act of

1974''.

Paragraph (a)(2) lists 5 categories of applicants eligible to apply

for funds under the Alaska-Specific Social and Economic Development

Strategies Project. As explained earlier, this separate listing

contains organizations that were in the NPRM but separate listings are

necessary because Alaskan organizations can elect to apply under either

the SEDS competition or the Alaska-Specific Social and Economic

Development Strategies Project.

Paragraph (a)(3), which was (a)(2) in the NPRM, lists 5 categories

of applicants eligible to apply for funds provided by the Department of

Defense (DoD) and ANA for the purpose of mitigating environmental

impacts on Indian Lands related to DoD activities. This list was

derived from the Environmental Mitigation Program Announcement as

published in the Federal Register: Availability of Financial

Assistance; (58 FR 69106; December 29, 1993). ANA does not interpret

Section 810(b) of the Act as requiring that applicants under the DoD

program have a right to appeal rulings of ineligibility; however the

ANA has decided as a matter of policy to include this program under the

regulations.

Paragraph (a)(4), which was (a)(3) in the NPRM, lists 5 categories

of applicants eligible to apply for funds for the improvement of the

capability of tribal governing bodies to regulate environmental

quality. The eligible categories of organizations are: (1) Federally

recognized Indian Tribes; (2) incorporated non-Federally recognized

Indian Tribes; (3) consortia of Indian Tribes; (4) Alaska Native

villages as defined by the Alaska Native Claims Settlement Act (ANCSA)

and/or nonprofit village consortia; (5) Tribal governing bodies (Indian

Reorganization Act (IRA) or traditional councils) as recognized by the

Bureau of Indian Affairs. The list of 5 categories is derived from the

program announcement: Availability of Financial Assistance for

Improving the Capability of Indian Tribal Governments to Regulate

Environmental Quality (59 FR 16650, April 7, 1994).

The provisions being added to the regulations do not include a list

of organizations eligible for grants authorized by Sec. 805 of the Act,

which authorizes grants for research, demonstration and pilot projects.

Eligibility under Sec. 805 is addressed in part under the revised 45

CFR 1336.30. ANA is not currently awarding grants under this provision,

nor does it have plans to do so. If, at some point in the future, it

does issue an announcement for funding under Sec. 805, the Agency will

provide additional guidance on eligibility under that provision.

Applicants for funding under Sec. 805 who wish to appeal the rejection

of an application based on a finding that either the applicant or the

proposed activities are ineligible for funding will be able to do so by

submitting an appeal as provided for by 45 CFR 1336.35.

Paragraph (b) provides a nonexclusive list of activities that are

ineligible for funding under programs authorized by the Native American

Programs Act of 1974. (It is impossible to list all activities that

would be considered eligible.) With the exception of one activity, the

purchase of real estate, which is prohibited by law, the remaining

activities listed are derived from ANA's past experiences in managing

grants and working with organizations, both public and private. Several

examples of these are:

(a) Projects in which a grantee would provide training and/or

technical assistance (T/TA) to other tribes or Native American

organizations (``third party T/TA''). However, the purchase of T/TA

by a grantee for its own use or for its members' use (as in the case

of a consortium), where T/TA is necessary to carry out project

objectives, is acceptable. Third party T/TA is not an eligible

activity because ANA believes it is inefficient to fund

organizations which would otherwise be able to apply directly to ANA

for T/TA funding;

(b) Projects that request funds for feasibility studies,

business plans, marketing plans or written materials, such as

manuals, that are not an essential part of the applicant's SEDS

long-range development plan. ANA is not interested in funding ``wish

[[Page 42820]]

lists'' of business possibilities. This policy reflects ANA's belief

that the limited amount of funds available to the Agency is better

used to support activities which directly affect the well-being of

the members of Native American communities;

(c) The support of on-going social service delivery programs or

the expansion, or continuation, of existing social service delivery

programs. This area is covered by other Federal programs and would

result in a duplicative effort by ANA; and

(d) Core administration functions, or other activities, that

essentially support only the applicant's on-going administrative

functions. ANA funds are used for specific projects that become

self-sustaining and not for the on-going administration of tribes or

organizations. (However, in Alaska-Specific SEDS Projects, ANA will

consider funding core administrative capacity building projects at

the village government level if the village does not have governing

systems in place.) This exception has been added because grantees

for Alaska-Specific SEDS Projects at the village government level

are frequently village governments or organizations performing

governmental functions on behalf of village governments. In many

instances, such funding is necessary to ensure that villages develop

the minimum governmental services necessary to support social and

economic development.

In section 1336.34, Notice of ineligibility, we require that upon a

finding by the Commissioner that an organization which has applied for

funding is ineligible or that the activities proposed by an

organization are ineligible, the Commissioner shall inform the

applicant, by certified letter, of the decision. The notice must

include a statement of the legal and factual grounds for the finding

concerning eligibility, a copy of these regulations, and the statement

regarding how to appeal the decision.

In section 1336.35, ``Appeal of ineligibility'', we are

establishing the procedures an applicant must follow when seeking to

appeal the ANA Commissioner's determination that an applicant, or

proposed activities, are rejected on grounds of ineligibility. This

section describes the steps that apply when seeking such an appeal. In

accordance with the Native Americans Programs Act, Section 810(b), the

applicant may make an appeal to the Secretary for review of the

determination of ineligibility. The Secretary has delegated this

authority to the Assistant Secretary. The Assistant Secretary has

delegated to the DAB the review of appeals made under section 810(b).

Except as otherwise provided in these regulations, Appeals will be

governed by the DAB regulations at 45 CFR Part 16. Under this section,

the applicant has 30 days following receipt of ineligibility

notification to appeal, in writing, the Commissioner's ruling. The

appeal must clearly identify the issues. Under this section, the

Commissioner shall have 45 days to respond to the applicant's

submission and the applicant 20 days to respond to the Commissioner's

submission to DAB. The individual presiding over the appeal may request

the parties to submit additional information within a specified time

period before closing the record in the appeal. The DAB will provide a

final written decision within 30 days of the closing of the record,

unless the Board determines for good reason that a decision cannot be

issued within the time period and so notifies the parties. If a

determination is made by the DAB that the applicant or application is

eligible, as required by law, the eligibility will not take effect

until the next cycle of grant proposals are considered by ANA.

III. Impact Analysis

Executive Order 12866

Executive Order 12866 requires that regulations be drafted to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that this

rule is consistent with these priorities and principles.

The final rule amends the current rules to establish an appeal

procedure authorized by the Older Americans Act Amendments of 1992. It

adds three new sections to 45 CFR Part 1336 that list the categories of

eligible applicants and ineligible activities, set forth requirements

for the notice of ineligibility, and establish procedures on how to

appeal determinations of ineligibility made by the Commissioner, ANA.

The final rule also deletes existing provisions from the regulations

that are no longer applicable or are rendered obsolete by this final

rule. We estimate that these regulations will not result in significant

additional costs to the Federal government or Native American programs.

Regulatory Flexibility Act of 1995

Consistent with the Regulatory Flexibility Act [5 U.S.C. Ch. 6], we

try to anticipate and reduce the impact of rules and paperwork

requirements on small businesses. For each rule with a ``significant

economic impact on a substantial number of small entities,'' we prepare

an analysis describing the rule's impact on small entities. Small

entities are defined by the Act to include small businesses, small non-

profit organizations and small governmental entities. While this rule

affects small entities, i.e., Alaskan Native villages and non-profit

organizations, based on past experience with respect to other appeals

under ANA, we expect the impact to be minimal. For this reason, the

Assistant Secretary certifies that these rules will not have a

significant impact on a substantial number of small entities.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all

Departments are required to submit to the Office of Management and

Budget (OMB) for review and approval any reporting or recordkeeping

requirement contained in a proposed or final rule. This final rule does

not contain any reporting or recordkeeping requirements, thus, no

submission to OMB is required.

List of Subjects in 45 CFR Part 1336

Administrative practice and procedure, American Samoa, Appeals

Grant programs--Indians, Grant programs--social programs, Guam,

Indians, Native Hawaiians, Northern Mariana Islands, Reporting and

recordkeeping requirements.

(Catalog of Federal Domestic Assistance Program Number 93.612 Native

American Programs)

Approved: July 23, 1996.

Mary Jo Bane,

Assistant Secretary for Children and Families.

For the reasons set forth in the preamble, 45 CFR Part 1336 is

amended as follows:

SUBCHAPTER D--THE ADMINISTRATION FOR NATIVE AMERICANS, NATIVE AMERICAN

PROGRAMS

PART 1336--NATIVE AMERICAN PROGRAMS

1. The authority citation for Part 1336 continues to read as

follows:

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

2. Section 1336.30 is amended by removing paragraphs (a) and (c),

removing the designation (b) from the remaining paragraph, and revising

the section heading to read as follows:

Sec. 1336.30 Eligibility under sections 804 and 805 of the Native

American Programs Act of 1974.

* * * * *

3. Three new sections, Secs. 1336.33, 1336.34 and 1336.35, are

added to read as follows:

Sec. 1336.33 Eligible applicants and proposed activities which are

ineligible.

(a) Eligibility for the listed programs is restricted to the

following specified categories of organizations. In addition,

applications from tribal components which are tribally-authorized

divisions of a larger tribe must be approved by the

[[Page 42821]]

governing body of the Tribe. If the applicant, other than a tribe or an

Alaska Native Village government, is proposing a project benefiting

Native Americans or Native Alaskans, or both, it must provide assurance

that its duly elected or appointed board of directors is representative

of the community to be served.

(1) Social and Economic Development Strategies (SEDS) and

Preservation and Enhancement of Native American Languages:

(i) Federally recognized Indian Tribes;

(ii) Consortia of Indian Tribes;

(iii) Incorporated non-Federally recognized Tribes;

(iv) Incorporated nonprofit multi-purpose community-based Indian

organizations;

(v) Urban Indian Centers;

(vi) National and regional incorporated nonprofit Native American

organizations with Native American community-specific objectives;

(vii) Alaska Native villages as defined in the Alaska Native Claims

Settlement Act (ANSCA) and/or nonprofit village consortia;

(viii) Incorporated nonprofit Alaska Native multi-purpose

community-based organizations;

(ix) Nonprofit Alaska Native Regional Corporations/Associations in

Alaska with village specific projects;

(x) Nonprofit Native organizations in Alaska with village specific

projects;

(xi) Public and nonprofit private agencies serving Native

Hawaiians;

(xii) Public and nonprofit private agencies serving native peoples

from Guam, American Samoa, Palau, or the Commonwealth of the Northern

Mariana Islands. (The populations served may be located on these

islands or in the United States);

(xiii) Tribally Controlled Community Colleges Tribally Controlled

Post-Secondary Vocational Institutions, and colleges and universities

located in Hawaii, Guam, American Samoa, Palau, or the Commonwealth of

the Northern Mariana Islands which serve Native American Pacific

Islanders; and

(xiv) Nonprofit Alaska Native community entities or tribal

governing bodies (Indian Reorganization Act or traditional councils) as

recognized by the Bureau of Indian Affairs.

(Statutory authority: Sections 803(a) and 803C of the Native

American Programs Act of 1974, as amended, 42 U.S.C. 2991 b(a) and

42 U.S.C. 2991b-3)

(2) Alaska-Specific Social and Economic Development Strategies

(SEDS) Projects:

(i) Federally recognized Indian Tribes in Alaska;

(ii) Alaska Native villages as defined in the Alaska Native Claims

Settlement Act (ANCSA) and/or nonprofit village consortia;

(iii) Incorporated nonprofit Alaska Native multi-purpose community-

based organizations;

(iv) Nonprofit Alaska Native Regional Corporations/Associations in

Alaska with village specific projects; and

(v) Nonprofit Native organizations in Alaska with village specific

projects.

(3) Mitigation of Environmental Impacts to Indian Lands Due to

Department of Defense Activities:

(i) Federally recognized Indian Tribes;

(ii) Incorporated non-Federally and State recognized Tribes;

(iii) Nonprofit Alaska Native community entities or tribal

governing bodies (Indian Reorganization Act (IRA) or traditional

councils) as recognized by the Bureau of Indian Affairs.

(iv) Nonprofit Alaska Native Regional Associations and/or

Corporations with village specific projects; and

(v) Other tribal or village organizations or consortia of Indian

Tribes. (Statutory authority: Sec. 8094A of the Department of Defense

Appropriations Act, 1994 (Public Law 103-139), Sec. 8094A of the Native

Americans Programs Act of 1974, as amended, 42 U.S.C. 2991h(b)).

(4) Improvement of the capability of tribal governing bodies to

regulate environmental quality:

(i) Federally recognized Indian Tribes;

(ii) Incorporated non-Federally and State recognized Indian tribes;

(iii) Alaska Native villages as defined in the Alaska Native Claims

Settlement Act (ANSCA) and/or nonprofit village consortia;

(iv) Nonprofit Alaska Native Regional Corporations/Associations

with village-specific projects;

(v) Other tribal or village organizations or consortia of Indian

tribes: and

(vi) Tribal governing bodies (IRA or traditional councils) as

recognized by the Bureau of Indian Affairs. (Statutory authority:

Sections 803(d) of the Native Americans Programs Act of 1974, as

amended 42 U.S.C. 2991b(d).)

(b) The following is a nonexclusive list of activities that are

ineligible for funding under programs authorized by the Native American

Programs Act of 1974:

(1) Projects in which a grantee would provide training and/or

technical assistance (T/TA) to other tribes or Native American

organizations (``third party T/TA''). However, the purchase of T/TA by

a grantee for its own use or for its members' use (as in the case of a

consortium), where T/TA is necessary to carry out project objectives,

is acceptable;

(2) Projects that request funds for feasibility studies, business

plans, marketing plans or written materials, such as manuals, that are

not an essential part of the applicant's SEDS long-range development

plan;

(3) The support of on-going social service delivery programs or the

expansion, or continuation, of existing social service delivery

programs;

(4) Core administration functions, or other activities, that

essentially support only the applicant's on-going administrative

functions; however, for Competitive Area 2, Alaska-Specific SEDS

Projects, ANA will consider funding core administrative capacity

building projects at the village government level if the village does

not have governing systems in place;

(5) The conduct of activities which are not responsive to one or

more of the three interrelated ANA goals (Governance Development,

Economic Development, and Social Development);

(6) Proposals from consortia of tribes that are not specific with

regard to support from, and roles of member tribes. An application from

a consortium must have goals and objectives that will create positive

impacts and outcomes in the communities of its members. ANA will not

fund activities by a consortium of tribes which duplicates activities

for which member tribes also receive funding from ANA; and

(7) The purchase of real estate. (Statutory authority: Sections

803B of the Native American Programs Act of 1974, as amended, 42 U.S.C.

2991b-2)

Sec. 1336.34 Notice of ineligibility.

(a) Upon a finding by the Commissioner that an organization which

has applied for funding is ineligible or that the activities proposed

by an organization are ineligible, the Commissioner shall inform the

applicant by certified letter of the decision.

(b) The letter must include the following:

(1) The legal and factual grounds for the Commissioner's finding

concerning eligibility;

(2) A copy of the regulations in this part; and

(3) The following statement: This is the final decision of the

Commissioner, Administration for Native Americans. It shall be the

final decision of the Department unless, within 30 days after receiving

this decision as provided in Sec. 810(b) of the Native Americans

Programs Act of 1974, as amended, and 45 CFR part 1336, you deliver or

mail

[[Page 42822]]

(you should use registered or certified mail to establish the date) a

written notice of appeal to the HHS Departmental Appeals Board, 200

Independence Avenue, S.W., Washington, D.C. 20201. You shall attach to

the notice a copy of this decision and note that you intend an appeal.

The appeal must clearly identify the issue(s) in dispute and contain a

statement of the applicant's position on such issue(s) along with

pertinent facts and reasons in support of the position. We are

enclosing a copy of 45 CFR part 1336 which governs the conduct of

appeals under Sec. 810(b). For additional information on the appeals

process see 45 CFR 1336.35. (Statutory authority: Sections 810(b) of

the Native American Programs Act of 1974, as amended, 42 U.S.C.

2991h(b).)

Sec. 1336.35 Appeal of ineligibility.

The following steps apply when seeking an appeal on a finding of

ineligibility for funding:

(a) An applicant, which has had its application rejected either

because it has been found ineligible or because the activities it

proposes are ineligible for funding by the Commissioner of ANA, may

appeal the Commissioner's ruling to the HHS Departmental Appeals Board,

in writing, within 30 days following receipt of ineligibility

notification.

(b) The appeal must clearly identify the issue(s) in dispute and

contain a statement of the applicant's position on such issue(s) along

with pertinent facts and reasons in support of the position.

(c) Upon receipt of appeal for reconsideration of a rejected

application or activities proposed by an applicant, the Departmental

Appeals Board will notify the applicant by certified mail that the

appeal has been received.

(d) The applicant's request for reconsideration will be reviewed by

the Departmental Appeals Board in accordance with 45 CFR part 16,

except as otherwise provided in this part.

(e) The Commissioner shall have 45 days to respond to the

applicant's submission under paragraph (a) of this section.

(f) The applicant shall have 20 days to respond to the

Commissioner's submission and the parties may be requested to submit

additional information within a specified time period before closing

the record in the appeal.

(g) The Departmental Appeals Board will review the record in the

appeal and provide a final written decision within 30 days following

the closing of the record, unless the Board determines for good reason

that a decision cannot be issued within this time period and so

notifies the parties.

(h) If the Departmental Appeals Board determines that the applicant

is eligible or that the activities proposed by the applicant are

eligible for funding, such eligibility shall not be effective until the

next cycle of grant proposals are considered by the Administration for

Native Americans. (Statutory authority: Sections 810(b) of the Native

American Programs Act of 1974, as amended, 42 U.S.C. 2991h(b).)

[FR Doc. 96-20982 Filed 8-16-96; 8:45 am]

BILLING CODE 4184-01-P