[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]



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 


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.

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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].


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 

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 

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 
     Include representatives with a demonstrated ability to 
communicate well with groups about the interests they will represent; 
     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 

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 
    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 

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) 
    [cir] Commit the time and effort required to attend and prepare for 
meetings; and
    [cir] Collaborate among diverse parties in a consensus-seeking 
    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 
    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 
    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 
    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 

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    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 
    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]