[Federal Register Volume 61, Number 161 (Monday, August 19, 1996)]
[Rules and Regulations]
[Pages 42817-42822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20982]


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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

[[Page 42819]]

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