[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Rules and Regulations]
[Pages 8553-8555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3445]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
25 CFR Chapter VI
RIN 1076-AD19
Tribal Self-Governance Program Selection Criteria
AGENCY: Office of Self-Governance, Office of the Secretary, Interior
ACTION: Interim rule.
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SUMMARY: In this interim rule, the Office of Self-Governance (OSG)
announces the criteria for tribes to be included in an applicant pool
and the establishment of the selection process for tribes to negotiate
agreements pursuant to the Tribal Self-Governance Act of 1994.
DATES: Effective date of this interim rule is February 15, 1995.
Written comments concerning this rule must be received on or before
April 17, 1995. The closing date for submission of complete application
packages for consideration for negotiations in 1996 is May 16, 1995. No
application package will be dated as received before March 17, 1995.
Applications requesting to be included in the applicant pool may be
submitted at any time. All tribes wishing to be considered for
participation in FY 1996 must respond to this announcement, except for
those which are (1) currently involved with negotiations with the
Department or (2) one of the 29 tribes with signed agreements in the
Demonstration Project.
ADDRESSES: Written comments concerning this rulemaking should be sent
to Director, Office of Self-Governance, U.S. Department of the
Interior, 1849 C Street NW., Mail Stop 2548, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Verner V. Duus, U.S. Department of the
Interior, Office of Self-Governance, 1849 C Street NW., Mail Stop 2548,
Washington, DC 20240, 202-219-0240.
SUPPLEMENTARY INFORMATION:
Justification for Interim Rule
Implementation of this rule is not rulemaking subject to the
provisions of section 553 of the Administrative Procedure Act (5 U.S.C.
551, et seq.) (APA). Section 553(a)(2) excepts from the scope of
rulemaking rules ``relating to agency management or personnel or to
public property, loans, grants, benefits, or contracts.''
Even if this rule were considered rulemaking subject to the
provisions of section 553 of the APA, good cause exists to publish this
interim rule without prior opportunity for public comment for the
following reasons.
Section 553 outlines the following rulemaking steps: (1)
Publication of a notice of proposed rulemaking, (2) solicitation of
public comment on the proposed rule, (3) review of comments received
prior to developing the final rule, and (4) publication of the final
rule 30 days prior to the effective date. Using this process at this
time would not serve the goal of the Tribal Self-Governance Act of
1994, which is to expand tribal participation in the Self-Governance
Program, because the process would delay selection of new participating
tribes for FY 1996. Under the Tribal Self-Governance Act of 1994, the
Secretary may select up to 20 additional participating tribes for the
Tribal Self-Governance Program, and negotiate and enter into an annual
written funding agreement with each participating tribe. The Act
mandates that the Secretary [[Page 8554]] submit copies of the funding
agreements at least 90 days before the proposed effective date to the
appropriate committees of the Congress and to each tribe that is served
by the BIA agency that is serving the tribe that is a party to the
funding agreement. Initial negotiations with a tribe located in an area
and/or agency which has not previously been involved with self-
governance negotiations, will take approximately 3 months from start to
finish. Since agreements for tribes on an October 1 to September 30
fiscal year need to be signed and submitted by July 1, new
participating tribes would need to be selected by April 1 to allow
sufficient time for negotiations. Publication of this interim rule
without prior opportunity for public comment is necessary to complete
the above procedures in a timely fashion. Therefore, pursuant to 5
U.S.C. 553(b)(3)(B), good cause is found that notice and public comment
procedures are impracticable, and pursuant to 5 U.S.C. 553(d), good
cause exists to make the rule effective immediately.
Background
The Tribal Self-Governance Program is designed to promote self
determination by allowing tribes to assume more control of programs
operated by the Department of the Interior through negotiated
agreements. The new law allows for negotiations to be conducted for
programs operated by the Bureau of Indian Affairs (BIA) and for
programs operated by other bureaus and offices within the Department
that are available to Indians or where there is an historical,
cultural, or geographic connection to an Indian tribe.
At the time of this announcement, 29 compacts have been signed
under the provisions of the Demonstration Project. In addition to these
29 tribal entities, the newly enacted Tribal Self-Governance Act of
1994, Public Law 103-413, authorizes the Secretary to negotiate with up
to 20 new tribes per year. Congress has also provided guidance
concerning the handling of signatory tribes in Alaskan consortiums. If
they are eligible to negotiate on their own and choose to do so, they
should not be counted as part of the 20 new tribes.
Purpose of Rule
This interim rule identifies the procedures and criteria that the
Office of Self-Governance will use in establishing the priority listing
of the additional participating tribes under the Tribal Self-Governance
Act of 1994. While this interim rule may be changed at a later date by
the rulemaking established pursuant to the Act, the Act stipulates that
the lack of promulgated regulations will not limit its effect. This
rule will take immediate effect to allow the application and selection
process for the upcoming year to begin.
The Secretary's decision on the actual number of tribes that will
enter negotiations will be made at a later date. Being on the list will
not guarantee that a tribe will actually be provided the opportunity to
negotiate in any given year; however, it does mean that a tribe will
not be passed over for a tribe farther down on the list or an unlisted
tribe with the exception of tribes that are already in the negotiations
process. For example, if the Department determines that 20 tribes will
be afforded the opportunity to negotiate self-governance agreements in
1996, the first 20 tribes on the list would be notified and
negotiations would be scheduled. The tribe numbered 21 on the list
would become number one on the list for 1997 or might enter
negotiations in 1996 if one of the first 20 dropped out.
The Department is adopting this rule before beginning the
negotiated rulemaking process as required by Congress to establish
definitive rules for the total self-governance program. This interim
rule governing the selection process and criteria will be subject to
negotiation and amendment by the negotiated rulemaking committee. The
committee will use any comments received following the publication of
this interim rule in negotiating the final rule. Furthermore, the
portion of the rule governing selection will be subject to additional
comment once the proposed regulations recommended by the negotiated
rulemaking committee are published in the Federal Register. The final
published rule will supersede this interim rule.
A. E.O. 12612
The Department has determined that this interim rule does not have
significant federalism effects.
B. E.O. 12630
In accordance with Executive Order 12630, the Department had
determined that this rule does not have significant takings
implications.
C. E.O. 12778
The Department has certified to the Office of Management and Budget
that this interim rule meets the applicable standards provided in
Sections 2(a) and 2(b)(2) of Executive Order 12778.
D. E.O. 12866
This interim rule is not a significant regulatory action under
Executive Order 12866, and therefore will not be reviewed by the Office
of Management and Budget.
E. Regulatory Flexibility Act Statement
This interim rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
F. NEPA Statement
The Department has determined that this interim rule does not
constitute a major Federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969.
G. Information Collection Statement
The information collection requirements contained in this interim
rule are included in current collections 1076-0090, 0091, 0096, 1030
and OMB circulars A-102, A-110, and SF-424.
H. Authorship Statement
The primary author of this document is Verner V. Duus, Office of
Self-Governance.
List of Subjects in Part 1001
Indians, Native Americans.
For the reasons set forth in the preamble, a new chapter VI
consisting at this time of part 1001 is added to Title 25 of the Code
of Federal Regulations as follows:
CHAPTER VI--OFFICE OF THE ASSISTANT SECRETARY--INDIAN AFFAIRS,
DEPARTMENT OF THE INTERIOR
PART 1001--SELF-GOVERNANCE PROGRAM
Sec.
1001.1 Purpose.
1001.2 Applicant eligibility.
1001.3 Priority ranking for negotiations.
1001.4 Application review and approval.
1001.5 Application review and selection process for negotiations
for funding agreements.
1001.6 Submitting applications.
Authority: 25 U.S.C. 450 note, 458aa-458gg.
Sec. 1001.1 Purpose.
The purpose of this rule is to establish the process for tribes to
apply for entry into the Self-Governance program and to establish the
selection criteria by which the Department will identify eligible
tribes and select tribes to begin the negotiations process.
Sec. 1001.2 Applicant eligibility.
Any tribe or consortium of tribes seeking inclusion in the
applicant pool [[Page 8555]] must meet the following eligibility
criteria:
(a) Be a federally recognized tribe or a consortium of federally
recognized tribes as defined in Public Law 93-638.
(b) Document, with an official action of the tribal governing body,
a formal request to enter negotiations with the Department of Interior
(Department) under the Tribal Self-Governance Act authority. In the
case of a consortium of tribes, the governing body of each
participating tribe must authorize participation by an official action
by the tribal governing body.
(c) Demonstrate financial stability and financial management
capability by furnishing organization-wide single audit reports as
prescribed by Public Law 96-502, the Single Audit Act of 1984, for the
previous three years. These audits must not contain material audit
exceptions. In the case of tribal consortiums, each signatory to the
agreement must meet this requirement. Non-signatory tribes
participating in the consortium do not have to meet this requirement.
(d) Successfully complete the planning phase for self-governance. A
final planning report must be submitted which demonstrates that the
tribe has conducted--
(1) legal and budgetary research; and
(2) internal tribal government and organizational planning.
(e) To be included in the applicant pool, tribes or tribal
consortiums may submit their applications at any time. The application
should state which year the tribe desires to enter negotiations.
Sec. 1001.3 Priority ranking for negotiations.
In addition to the eligibility criteria identified above, a tribe
or consortium of tribes seeking priority ranking for negotiations must
submit a description of the efforts of the tribe or consortium to seek
to enter negotiations and/or prepare for operations under the self-
governance option. This narrative should identify any activities that
the tribe has pursued, carefully identifying and documenting the dates
involved, including, but not limited to, the following:
(a) Prior planning activities related to self-governance, noting
the source of funding for the planning activity and whether or not it
was sanctioned by the Office of Self-Governance (OSG), including
documentation as applicable.
(b) Prior efforts to secure planning and/or negotiation grants.
(c) Meetings with the OSG or other Departmental offices in which
the tribe expressed an interest in participating in the Self-Governance
Project.
(d) Correspondence between the tribe and the Department in which
the tribe has expressed an interest in participating in the Self-
Governance Project.
(e) All actions of the tribal governing body related to
participating in the self-governance option.
Sec. 1001.4 Application review and approval.
Upon receipt of an application, the OSG will review the package and
determine whether or not it is complete. Upon determination that it is
complete, the name of the tribe or consortium will be included in the
official applicant pool. Incomplete submissions will be returned with
the deficiencies identified. Revised applications may be resubmitted
for consideration at any time.
Sec. 1001.5 Application review and selection process for negotiations
for funding agreements.
Upon acceptance into the applicant pool, the OSG will assign to
each tribe or consortium a ranking relative to other applicants based
upon the date the OSG receives the complete application package. This
ranking will constitute a master list that will be maintained and
updated on a continuous basis from year to year. When receipt dates are
the same for two or more applications, several other factors will be
considered in determining the placement of the tribe or consortium on
the list. These factors are identified in priority order as follows:
(a) Designation by the Congress through report language that a
tribe should be considered for participation. These designations will
be considered based upon the actual language of the report.
(b) Documentation of OSG sanctioning of the tribe's self-governance
planning and subsequent evidence of actual planning by the tribe.
(c) Submission of a completed planning or negotiation grant
application in the previous year.
(d) A signed agreement pursuant to the Indian Health Service (IHS)
self-governance project.
(e) Receipt of a planning grant awarded by the IHS.
Sec. 1001.6 Submitting Applications.
(a) Applications for inclusion in the applicant pool will be
accepted on an on-going basis.
(b) Applications may be mailed or hand-delivered.
(c) Applications for negotiations in 1996 that are mailed must be
postmarked no later than May 16, 1995.
(d) Applications must be sent to: Director, Office of Self
Governance, Department of the Interior, 1849 C Street, NW MIB RM/MS-
2548, Washington, DC 20240.
Dated: February 6, 1995.
Ada E. Deer,
Assistant Secretary, Indian Affairs.
[FR Doc. 95-3445 Filed 2-14-95; 8:45 am]
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