[Federal Register Volume 86, Number 19 (Monday, February 1, 2021)]
[Proposed Rules]
[Pages 7656-7659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01149]
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DEPARTMENT OF THE INTERIOR
Office of the Assistant Secretary Indian Affairs
25 CFR Part 1000
[212A2100DD/AAKC001030/A0A501010.999900 253G]
Self-Governance PROGRESS Act Negotiated Rulemaking Committee
Establishment; Nominations
AGENCY: Office of the Assistant Secretary--Indian Affairs, Interior.
ACTION: Notice of intent to establish committee; request for
nominations.
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SUMMARY: The U.S. Department of the Interior (DOI) is announcing its
intent to establish a Self-Governance PROGRESS Act Negotiated
Rulemaking Committee (Committee) to negotiate and advise the Secretary
of the Interior (Secretary) on a proposed rule to implement the
Practical Reforms and Other Goals To Reinforce the Effectiveness of
Self-Governance and Self-Determination for Indian Tribes Act of 2019
(PROGRESS Act). The DOI is soliciting comments on its proposal to form
a negotiated rulemaking committee; and invites nominations for
Committee members who will adequately represent the interests that are
likely to be significantly affected by the proposed rule.
DATES: Comments regarding the intent to establish this Committee and
nominations for Committee members must be submitted no later than March
3, 2021.
ADDRESSES: Send written comments and nominations to Ms. Vickie Hanvey,
by any of the following methods:
(Preferred method) Email to: [email protected];
Mail, hand-carry or use an overnight courier service to
Ms. Vickie Hanvey, Office of Self-Governance, Office of the Assistant
Secretary--Indian Affairs, 1849 C Street NW, Mail Stop 4660,
Washington, DC 20240.
[[Page 7657]]
FOR FURTHER INFORMATION CONTACT: Ms. Vickie Hanvey, Program Policy
Analyst, Office of Self-Governance, Office of the Assistant Secretary--
Indian Affairs; telephone: (918) 931-0745; email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On October 21, 2020, the PROGRESS Act was signed into law. See
Public Law 116-180. The PROGRESS Act amends subchapter I of the Indian
Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C.
5301 et seq., which addresses Indian Self-Determination, and subchapter
IV of the ISDEAA which addresses DOI's Tribal Self-Governance Program.
The PROGRESS Act calls for a negotiated rulemaking committee to be
established under 5 U.S.C. 565, with membership consisting only of
representatives of Federal and Tribal governments, with the Office of
Self-Governance serving as the lead agency for the DOI. The PROGRESS
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 Indian Tribes.
This notice is published in accordance with the Negotiated
Rulemaking Act of 1996 (NRA) (5 U.S.C. 561 et seq.); FACA; and the
PROGRESS Act.
II. Scope of the Proposed Rule To Be Negotiated
The PROGRESS Act requires DOI to establish the negotiated
rulemaking committee to develop proposed regulations to implement
subchapter IV, regarding the Self-Governance Program. See Public Law
116-180, Section 413. Current regulations implementing the Self-
Governance Program are found at 25 CFR part 1000, Annual Funding
Agreements under the Tribal Self-Government Act Amendments to the
Indian Self-Determination and Education Act. It is anticipated that the
proposed rule will revise those regulations at 25 CFR part 1000 to
amend, delete, and add provisions as appropriate to implement the
PROGRESS Act.
III. The Committee and Process for Negotiated Rulemaking
The Committee will be charged with developing proposed regulations
for the Secretary's implementation of the PROGRESS Act's provisions
regarding the DOI's Self-Governance Program. In negotiated rulemaking,
recommended provisions of a proposed rule are developed by a committee
composed of at least one representative of the Federal Government and
representatives of the interests that will be significantly affected by
the rule. In compliance with FACA and the NRA, the DOI will use the
following procedures for this negotiated rulemaking. The DOI may modify
them in response to comments received on this notice of intent or
during the negotiation process.
A. Committee Formation
The Committee will be formed in full compliance with the
requirements of FACA and the NRA, and operate in full compliance with
the NRA and the guidelines of its charter.
B. Composition of Committee
The Secretary is seeking nominations for representatives to serve
on the Committee who can represent the interests listed in Section C,
and who have a demonstrated ability to communicate well with groups
about the interests they will represent. The Committee membership will
consist of approximately 15, but not more than 25 members in accordance
with the NRA.
Tribal Committee membership must:
Include only representatives of the interests described
below;
Include representatives with a demonstrated ability to
communicate well with groups about the interests they will represent;
and
Include Tribal representatives appointed by the Secretary
that are:
[cir] Elected officials of Tribal governments acting in their
official capacities;
[cir] Or their designated employees with authority to act on their
behalf in their official capacities;
[cir] Representative of Tribes with a geographical balance; and
[cir] A majority of whom are representative of Indian Tribes with
existing self-governance funding agreements.
Comply with the FACA.
FACA regulations require the membership of a FACA committee to be
fairly balanced in its member in terms of the points of view
represented and the functions to be performed. See 41 CFR 102-3.30. In
making membership decisions, the Secretary will consider whether the
interest represented by a nominee will be affected significantly by the
final products of the Committee, which may include report(s) and/or
proposed regulations; whether that interest is already adequately
represented by nominees; and whether the potential addition would
adequately represent that interest.
Federally registered lobbyists are ineligible to serve on all FACA
and non-FACA boards, committees, or councils in an individual capacity.
The term ``individual capacity'' refers to individuals who are
appointed to exercise their own individual best judgment on behalf of
the government, such as when they are designated Special Government
Employees, rather than being appointed to represent a particular
interest.
C. Interests Identified
Under Section 562 of the NRA, ``interest'' means, with respect to
an issue or matter, multiple parties which have a similar point of view
or which are likely to be affected in a similar manner. A limited
number of identifiable interests will be significantly affected by the
rule. Those parties are Indian Tribes and Tribal organizations as
defined in section 4(l) of the Indian Self-Determination and Education
Assistance Act that are currently participating in the Tribal Self-
Governance Program and those that are not currently participating in,
but are interested in participating in Tribal Self-Governance Program.
The DOI is accepting comments identifying other interests that may
be significantly affected by the final products of the Committee, which
may include report(s) and/or proposed regulations, until the date
listed in the DATES section of this notice of intent.
D. Committee Member Responsibilities
The Committee is expected to meet approximately 3-5 times and each
meeting is expected to last multiple hours for a consecutive 2-3 days
each. The initial meeting will be held by teleconference and/or web
conference; later meetings may be held either virtually or in person.
The Committee's work is expected to occur over the course of 6-12
months, and it is the Secretary's intent to publish the proposed rule
for notice and comment by the statutory deadline of July 21, 2022
(within 18 months of the anticipated date of the Committee's
establishment). However, the Committee may continue its work for up to
two years.
Because of the scope and complexity of the tasks at hand, Committee
members must be able to invest considerable time and effort in the
negotiated rulemaking process. Committee members must be able to attend
all Committee meetings, work on Committee work groups, consult with
their constituencies between Committee meetings, and negotiate in good
faith toward a consensus on issues before the Committee. Because of the
complexity of the issues under consideration, as
[[Page 7658]]
well as the need for continuity, the Secretary reserves the right to
replace any member who is unable to participate in the Committee's
meetings.
Under 5 U.S.C. 568(c), members of a negotiated rulemaking committee
are responsible for their own expenses of participation in such
committee, except that an Agency may, in accordance with Section 7(d)
of the FACA, pay for a member's reasonable travel and per diem
expenses, expenses to obtain technical assistance, and a reasonable
rate of compensation, if:
Such member certifies a lack of adequate financial
resources to participate in the Committee; and
The agency determines that such member's participation in
the Committee is necessary to assure an adequate representation of the
member's interest.
The DOI commits to pay the reasonable travel and per diem expenses
of Committee members, if appropriate, under the NRA and Federal travel
regulations.
E. Facilitator
The Committee may use a neutral facilitator. The facilitator will
not be involved with the substantive development or enforcement of the
regulation. The facilitator's role is to help the negotiation process
run smoothly, and help participants define and reach consensus.
F. Administrative and Technical Support
The DOI will provide sufficient administrative and technical
resources for the Committee to complete its work in a timely fashion.
The DOI, with the help of the facilitator, will prepare and provide a
final report of any issues on which the Committee reaches consensus.
G. Training and Organization
At the first meeting of the Committee, a neutral facilitator will
provide training on negotiated rulemaking, interest-based negotiations,
and consensus-building. In addition, at the first meeting, Committee
members will make organizational decisions concerning protocols,
scheduling, and facilitation of the Committee.
H. Committee Meeting Procedures
The members of the Committee, with the assistance of the
facilitator, may adopt procedures for Committee meetings.
IV. Request for Nominations to the Committee
The PROGRESS Act requires that the Committee be comprised of only
Federal and Tribal government representatives. Tribes may nominate
Tribal leaders to serve on the Committee who will adequately represent
the interests that are likely to be significantly affected by the
proposed rule. Each nomination is expected to include a nomination for
a primary representative and an alternate who can fulfill the
obligations of membership should the primary representative be unable
to attend. The Committee membership should reflect a diversity of
interests, and nominees should only be of representatives and
alternates who:
Are elected officials of Tribal governments (or their
designated employees with authority to act on their behalf) acting in
their official capacities; and
Will be able to:
[cir] Represent one or more of the specified interests with the
authority to embody the views of that interest, communicate with
interested constituents, and have a clear means to reach agreement on
behalf of the interest(s);
[cir] Coordinate, to the extent possible, with other interests who
may not be represented on the Committee;
[cir] Negotiate effectively on behalf of the interest(s)
represented;
[cir] Commit the time and effort required to attend and prepare for
meetings; and
[cir] Collaborate among diverse parties in a consensus-seeking
process.
The DOI will consider nominations for representatives only if they
are nominated through the process identified in this Notice of Intent.
The DOI will not consider any nominations that we receive in any other
manner. The DOI will not consider nominations for Federal
representatives; only the Secretary may nominate Federal employees to
the Committee.
Nominations must include the following information about each
nominee:
1. A current letter from the governing body or chairperson of the
Tribe representing one of the interest(s) identified supporting the
nomination of the individual to serve as a representative for the Tribe
on the Committee;
2. A resume reflecting the nominee's qualifications and experience,
to include the nominee's name, Tribal affiliation, job title, major job
duties, employer, business address, business telephone and fax numbers
(and business email address, if applicable);
3. The interest(s) to be represented by the nominee (see Section
III.C of this notice) and whether the nominee will represent other
interest(s) related to this rulemaking; and
4. A brief description of how the nominee will represent the views
of the identified interest(s), communicate with constituents, and have
a clear means to reach agreement on behalf of the interest(s) they are
representing.
5. A statement on whether the nominee is only representing one
interest or whether the expectation is that the nominee represents a
specific group of interests.
To be considered, nominations must be received by the close of
business on the date listed in the DATES section, at the location
indicated in the ADDRESSES section.
V. Solicitation of Public Comments
Members of the public are invited to submit comments on this
proposal to establish the Committee.
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
VI. Next Steps
Following the receipt of nominations and comments, DOI will publish
a second notice in the Federal Register with a list of persons to
represent the interests that are likely to be significantly affected by
the rule and the person or persons proposed to represent the DOI.
Persons who will be significantly affected by the proposed rule and who
believe that their interests will not be adequately represented by any
person specified in that second Federal Register notice will be given
an opportunity to apply or nominate another person for membership on
the Committee to represent such interests with respect to the proposed
rule.
Following the second Federal Register notice and responses to it,
DOI expects to establish the Committee. After the Committee reaches
consensus on the recommended provisions of the proposed rule, as
discussed in more detail below, the DOI will publish a proposed rule in
the Federal Register.
VII. Determination That Negotiated Rulemaking is in the Public Interest
Under 5 U.S.C. 563, the head of the agency is required to determine
that the use of the negotiated rulemaking procedure is in the public
interest.
[[Page 7659]]
In making such a determination, the agency head must consider
certain factors. Taking these factors into account, the Secretary,
through the authority delegated to the Assistant Secretary--Indian
Affairs, has determined that a negotiated rulemaking is in the public
interest because:
1. A rule is needed. The PROGRESS Act directs the Secretary to
conduct a negotiated rulemaking pursuant to the NRA.
2. A limited number of identifiable interests will be significantly
affected by the rule.
3. There is a reasonable likelihood that the Committee can be
convened with a balanced representation of persons who can adequately
represent the interests discussed in item 2, above, and who are willing
to negotiate in good faith to attempt to reach a consensus on
provisions of a proposed rule.
4. There is a reasonable likelihood that the Committee will reach
consensus on a proposed rule within a fixed period of time.
5. The use of negotiated rulemaking will not delay the development
of a proposed rule because time limits will be placed on the
negotiation. We anticipate that these negotiations will expedite a
proposed rule and ultimately the acceptance of a final rule.
6. The DOI is making a commitment to ensure that the Committee has
sufficient resources to complete its work in a timely fashion.
7. The DOI, to the maximum extent possible and consistent with the
legal obligations of the Agency, will use the consensus report of the
Committee as the basis for a proposed rule for public notice and
comment.
For the above reasons, I hereby certify that the Self-Governance
PROGRESS Act Negotiated Rulemaking Committee is in the public interest.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2021-01149 Filed 1-29-21; 8:45 am]
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