[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Rules and Regulations]
[Pages 17830-17833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9740]



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DEPARTMENT OF THE INTERIOR

Office of the Secretary

25 CFR Part 1001

RIN 1076-AD26


Tribal Self-Governance Program Interim Rule Establishing 
Procedures for Awarding Negotiation/Planning Grants

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) 
establishes procedures for awarding negotiation grants; advance 
planning grants; and negotiation/planning grants to negotiate for 
Department of the Interior (DOI) non-Bureau of Indian Affairs (BIA) 
programs, pursuant to the Tribal Self-Governance Act.

DATES: The effective date of this interim rule is April 19, 1996. OSG 
will consider Written comments on the interim rule when revising this 
rule. To be considered, comments must be received on or before May 31, 
1996.

ADDRESSES: Written comments on the interim rule should be sent to the 
Director, Office of Self-Governance, U.S. Department of the Interior, 
Mail Stop 2548, 1849 C Street NW., Washington DC 20240.

FOR FURTHER INFORMATION CONTACT:
Dr. Kenneth D. Reinfeld, 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

    This rule is not a 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.
    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 tribal self-
governance program, because the process would diminish the ability of 
some selected tribes/consortia to effectively negotiate agreements for 
fiscal year 1997 or calendar year 1997. The process would also diminish 
the ability of other tribes/consortia in the near term to plan for and 
possibly delay their participation in tribal self-governance.
    The Tribal Self-Governance Act of 1994 (Pub. L. 103-413) was 
enacted and became effective on October 25, 1994. While the interim 
rule may be changed by later rulemaking, the Act stipulates that the 
lack of promulgated regulations will not limit the Act's effect.
    Under section 402(b) of the Act, the Director, Office of Self-
Governance may select up to 20 additional participating tribes/
consortia per year for the tribal self-governance program, and 
negotiate and enter into an annual written funding agreement with each 
participating tribe. In order to complete the negotiation process for 
1997 funding agreements, it is necessary to make available negotiation 
grants to the new tribes by May 15, 1996. The Act mandates that the 
Secretary 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/consortium located in an area and/or agency 
which has not previously been involved with self-governance 
negotiations, will take approximately two months from start to finish.
    Publication of this interim rule without prior opportunity for 
public comment is necessary to complete the above procedures in a 
timely fashion. Therefore, applying the criteria at 5 U.S.C. 
553(b)(3)(B) and 553(d), good cause exists to make the rule effective 
less than thirty days from today's date.

Background

    The tribal self-governance program is designed to promote self 
determination by allowing tribes to assume more control through 
negotiated agreements of programs operated by the Department of the 
Interior. The new law allows for negotiations to be conducted for 
programs operated by BIA and for programs operated by other bureaus and 
offices within the Department that are available to Indians or when 
there is an historical, cultural, or geographic connection to an Indian 
tribe.
    The Tribal Self-Governance Act of 1994 requires the Secretary, upon 
request of a majority of self-governance tribes, to initiate procedures 
under the Negotiated Rulemaking Act, 5 U.S.C. 561 et seq., to negotiate 
and promulgate regulations necessary to carry out the tribal self-
governance program. The Act calls for a negotiated rulemaking committee 
to be established pursuant to 5 U.S.C. 565 comprised of Federal and 
tribal representatives, with a majority of the tribal representatives 
representing self-governance tribes. The Act also authorizes the 
Secretary to adapt negotiated rulemaking procedures to the unique 
context of self-governance and the government-to-government 
relationship between the United States and the Indian tribes. On 
November 1, 1994, a majority of self-governance tribes wrote the 
Secretary requesting the immediate initiation of negotiated rulemaking. 
On February 15, 1995, the self-governance negotiated rulemaking 
committee was established.
    On the same day, an interim rule was published in the Federal 
Register at 60 FR 8553 announcing 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. This interim rule allowed an additional 20 new 
tribes/consortia to negotiate compacts and annual funding agreements 
for fiscal year 1996 and calendar year 1996 as authorized by the Act. 
Using the same interim rule, a notice of deadline for submitting 
completed applications to begin participation in tribal self-governance 
in fiscal year 1997 or calendar year 1997 was published in the Federal 
Register on February 1, 1996. To date, a total of 54 compacts and 
annual funding agreements have been negotiated.
    Since publication of the interim rule, the self-governance 
negotiated rulemaking committee has reached

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tentative agreement on draft provisions relating to the procedures for 
awarding negotiation grants; advance planning grants; and negotiation/
planning grants to negotiate for DOI non-BIA programs. These provisions 
along with other sections of the negotiated rules are subject to notice 
and public comment procedures as part of the rulemaking process. Given 
the fact that more time is needed to reach agreement on other sections 
of the negotiated rules, it is not possible to provide notice and 
obtain public comment on the rule so as to award the grants in a timely 
fashion using fiscal year 1996 funds.

Purpose of Rule

    This interim rule establishes procedures which are consistent with 
the self-governance negotiated rulemaking committee's negotiations for 
awarding negotiation and planning grants. The interim rule is intended 
to allow the grants to be awarded using fiscal year 1996 funds.
    This interim rule will take immediate effect to allow the grant 
selection process for the upcoming year to begin under an interim rule 
that has been tentatively agreed upon by the self-governance negotiated 
rulemaking committee.
    The Department is adopting this rule before the self-governance 
negotiated rulemaking process is completed. This interim rule will be 
subject to negotiation and amendment by the negotiated rulemaking 
process. The self-governance negotiated rulemaking committee will use 
any comments received following the publication of this interim rule in 
negotiating the final rule. Furthermore, the portion of the interim 
rule governing the awarding of the grants will be subject to additional 
comment once the proposed regulations recommended by the self-
governance 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 has 
determined that this interim rule does not have significant takings 
implications.

C. E.O. 2778

    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. 12886

    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 Dr. Kenneth Reinfield, 
Office of Self- Governance.

List of Subjects in 25 CFR Part 1001

    Indians, Native Americans.

    For the reasons given in the preamble, title 25, part 1001 is 
amended as follows:

PART 1001--SELF-GOVERNANCE PROGRAM

    1. The authority citation for part 1001 continues to read as 
follows:

    Authority: 26 U.S.C. 450 note, 458aa-458gg.

    2. Sections 1001.7 through 1001.10 are added to read as follows:


Sec. 1001.7  Availability, amount, and number of planning and 
negotiation grants.

    (a) What is the purpose of this section? This section describes how 
to apply for planning and negotiation grants authorized by section 
402(d) of the Act to help meet tribal costs incurred:
    (1) In meeting the planning phase requirement of Pub. L. 103-413, 
including planning to negotiate non-BIA programs, services, functions 
and activities; and
    (2) In conducting negotiations.
    (b) What types of grants are available? Three categories of grants 
may be available:
    (1) Negotiation grants for tribes/consortia selected from the 
applicant pool as described in Sec. 1001.5 of these regulations;
    (2) Planning grants for tribes/consortia requiring advance funding 
to meet the planning phase requirement of Pub. L. 103-413; and
    (3) Financial assistance for tribes/consortia to plan for 
negotiating for non-BIA programs, services, functions and activities, 
as described in Sec. 1001.10.
    (c) Will grants always be made available to meet the planning phase 
requirement as described in section 402(d) of Pub. L. 103-413? No. 
Grants to cover some or all of the planning costs that a tribe/
consortium may incur may be made available depending upon the 
availability of funds appropriated by Congress. We will publish notice 
of availability of grants in the Federal Register as described in this 
section.
    (d) May a tribe use its own resources to meet its planning and 
negotiation expenses in preparation for entering into self-governance? 
Yes. A tribe/consortium may use its own resources to meet these costs. 
Receiving a grant is not necessary to meet the planning phase 
requirement of the Act or to negotiate a compact and annual funding 
agreement.
    (e) What happens if there are insufficient funds to meet the 
anticipated tribal requests for planning and negotiation grants in any 
given year? If appropriated funds are available but insufficient to 
meet the total requests from tribes/consortia, we will give first 
priority to those that have been selected from the applicant pool to 
negotiate an annual funding agreement. We will give second priority to 
tribes/consortia that require advance funds to meet the planning 
requirement for entry into the self-governance program. We will give 
third priority to tribes/consortia that require negotiation/planning 
funds to negotiate for DOI non-BIA programs.
    (f) How many grants will the Department make each year and what 
funding will be available? The number and size of grants awarded each 
year will depend on Congressional appropriations and tribal interest. 
Each year, we will publish a notice in the Federal Register which 
provides relevant details about the application process, including: The 
funds available, timeframes, and requirements for negotiation and 
advance planning specified in this part.

[[Page 17832]]

Sec. 1001.8  Selection criteria for tribes/consortia to receive a 
negotiation grant.

    (a) Who may be selected to receive a negotiation grant? Any tribe/
consortium that has been accepted into the applicant pool in accordance 
with Sec. 1001.5 and has been selected to negotiate a self-governance 
annual funding agreement is eligible to apply for a negotiation grant. 
Each year, we will publish a notice in the Federal Register with all 
relevant details as to how tribes/consortia which have been selected 
can apply for negotiation grants.
    (b) What must a tribe/consortium do to receive a negotiation grant?
    (1) To receive a negotiation grant, a tribe/consortium must:
    (i) Be selected from the applicant pool to negotiate an annual 
funding agreement;
    (ii) Be identified as eligible to receive a negotiation grant; and
    (iii) Not have received a negotiation grant within the 3 years 
preceding the date of the latest Federal Register announcement 
described in Sec. 1001.7.
    (2) The tribe/consortium must submit a letter affirming its 
readiness to negotiate and formally request a negotiation grant to 
prepare for and negotiate a self-governance agreement. These grants are 
not competitive.
    (c) May a selected tribe negotiate without applying for a 
negotiation grant? Yes. In this case, the tribe should notify us in 
writing so that funds can be reallocated for other grants.


Sec. 1001.9  Selection criteria for tribes/consortia seeking advance 
planning grant funding.

    (a) Who is eligible to apply for a planning grant that will be 
awarded before a tribe/consortium is admitted into the applicant pool? 
Any tribe/consortium that is not a self-governance tribe and needs 
advance funding in order to complete the planning phase requirement may 
apply. Tribes/consortia that have received a planning grant within 3 
years preceding the date of the latest Federal Register announcement 
described in Sec. 1001.7 are not eligible.
    (b) What must a tribe/consortium seeking a planning grant submit in 
order to meet the planning phase requirements? A tribe/consortium must 
submit the following material:
    (1) a tribal resolution or other final action of the tribal 
governing body indicating a desire to plan for tribal self-governance;
    (2) audits from the last 3 years which document that the tribe 
meets the requirement of being free from any material audit exception;
    (3) a proposal that describes the tribe's/consortium's plans to 
conduct:
    (i) legal and budgetary research, and
    (ii) internal tribal government and organization planning;
    (4) a timeline indicating when planning will start and end; and
    (5) evidence that the tribe/consortium can perform the tasks 
associated with its proposal (i.e., submit resumes and position 
descriptions of key staff or consultants to be used).
    (c) How will tribes/consortia know when and how to apply for 
planning grants? Each year, we will publish in the Federal Register a 
notice of the availability of planning grants for additional tribes as 
described in Sec. 1001.7. This notice will identify the specific 
details for applying.
    (d) What criteria will be used to award planning grants to those 
tribes/consortia requiring advance funding to meet the planning phase 
requirement of Public Law 103-413? Advance planning grants are 
discretionary and based on need. The following criteria will be used to 
determine whether to award a planning grant to a tribe/consortium 
before the tribe is being selected into the applicant pool:
    (1) A complete application as described in Secs. 1001.9(b) and 
1001.9(c);
    (2) A demonstration of financial need. We will rank applications 
according to the percentage of tribal resources to total resources as 
indicated in the latest A-128 audit. We will give priority to 
applications that demonstrate financial need by having a lower level of 
tribal resources as a percent of total resources; and
    (3) Other factors that demonstrate the readiness of the tribe/
consortium to enter into a self-governance agreement, including 
previous efforts of the tribe/consortium to participate in self-
governance.
    (e) Can tribes/consortia that receive advance planning grants also 
apply for a negotiation grant? Yes. Tribes/consortia that receive 
advance planning grants may submit a completed application to be 
included in the applicant pool. Once approved for inclusion in the 
applicant pool, the tribe/consortium may apply for a negotiation grant 
according to the process identified in Sec. 1001.7 above.
    (f) When and how will a tribe/consortium know whether it has been 
selected to receive an advance planning grant? Within 30 days of the 
deadline for submitting applications we will notify the tribe/
consortium by letter whether it has been selected to receive an advance 
planning grant.


Sec. 1001.10  Selection criteria for other planning and negotiating 
financial assistance.

    (a) What is the purpose of this section? This section describes how 
to apply for other financial assistance for planning and negotiating of 
a DOI non-BIA program, service, function or activity that may be 
available, as well as the selection process.
    (b) Are there other funds that may be available to self-governance 
tribes/consortia for planning and negotiating with DOI non-BIA bureaus? 
Yes.Tribes/consortia may contact the Director, Office of Self-
Governance to determine if funds are available for the purpose of 
planning and negotiating with DOI non-BIA bureaus under this section. A 
tribe/consortium may also request information from a DOI non-BIA bureau 
on any funds which may be available from that bureau.
    (c) Who is eligible to apply for financial assistance to plan and 
negotiate for a DOI non-BIA program? Any existing self-governance 
tribe/consortium is eligible.
    (d) Under what circumstances may planning and negotiation financial 
assistance be made available to tribes/consortia? At the discretion of 
the Director, grants may be awarded when requested by the tribe and 
coordinated with the DOI non-BIA agency involved.
    (e) How does the tribe/consortium apply for a grant to plan and 
negotiate for a DOI non-BIA program? When such funds are available, we 
will publish a notice of their availability and a deadline for 
submitting applications for such grants in the Federal Register as 
indicated in Sec. 1001.7.
    (f) What must be included in the application? The application must 
include the following:
    (1) the tribal resolution or other final action of the tribal 
governing body indicating that the tribe/consortium intends to 
negotiate for a DOI non-BIA program;
    (2) a copy of the proposal or summary that was submitted to the DOI 
non-BIA bureau;
    (3) a time line indicating when planning will begin and end;
    (4) the planning resources from all other sources that are approved 
and/or anticipated for the planning activity; and
    (5) the amount requested and a justification of why it is needed by 
the tribe/consortium.
    (g) What criteria will we use to award grants to those tribes/
consortia requesting financial assistance to plan and negotiate for a 
DOI non-BIA program? The award of such grants is discretionary. After 
consulting with the

[[Page 17833]]

requesting tribe/consortium and the appropriate DOI non-BIA bureau, the 
Director will determine whether to award a grant to plan and negotiate 
for a DOI non-BIA program. The determination will be based upon the 
complexity of the project, the availability of resources from all other 
sources, and the relative need of the tribe/consortium to receive such 
funds for the successful completion of the planning and negotiating 
activity, as determined by the percentage of tribal resources to total 
resources as indicated in the latest A-128 audit. All decisions to 
award or not to award grants as described in paragraphs (e) and (f) of 
this section are final for the Department.

    Dated: April 4, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-9740 Filed 4-22-96; 8:45 am]
BILLING CODE 4310-02-M