[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Proposed Rules]
[Pages 69215-69217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25906]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1336

RIN 0970-AC88


Native American Programs

AGENCY: Administration for Native Americans (ANA), Administration for 
Children and Families (ACF), U.S. Department of Health and Human 
Services (HHS).

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice of proposed rulemaking (NPRM) proposes changes to 
ANA regulations to allow grant recipients to apply for an emergency 
waiver of part or all of their proposed non-Federal share (NFS) due to 
emergency circumstances.

DATES: In order to be considered, written comments on this proposed 
rule must be received on or before February 7, 2022.

ADDRESSES: You may submit comments, identified by docket number ACF-
2021-004 and/or RIN number, by the following method:

[[Page 69216]]

     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions below for submitting comments.
     Instructions: All submissions received must include the 
agency name and docket number or RIN for this rulemaking. All comments 
received will be posted without change to https://www.regulations.gov, 
including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Carmelia Strickland, Administration 
for Native Americans, 202-401-6741. Deaf and hearing-impaired 
individuals may call the Federal Dual Party Relay Service at 1-800-877-
8339 between 8 a.m. and 7 p.m. Eastern Time.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Statutory Authority
III. Section by Section Discussion of the Proposed Rule
IV. Regulatory Process Matters
    Paperwork Reduction Act of 1995
    Regulatory Flexibility Act
    Treasury and General Government Appropriations Act of 1999
    Unfunded Mandates Reform Act of 1995
    Federalism Assessment Executive Order 13132
    Congressional Review
    Executive Orders 12866 and 13563--Regulatory Impact Analysis

I. Background

Native American Programs Act of 1974

    The Native American Programs Act of 1974 (NAPA), Public Law 93-644, 
was first enacted on January 4, 1975. The last time substantial 
amendments to the NAPA regulations were made was 1996. Section 802 of 
the NAPA establishes as its broad statutory purpose the promotion of 
``the goal of economic and social self-sufficiency for American 
Indians, Native Hawaiians, other Native American Pacific Islanders 
(including American Samoan Natives), and Alaska Natives.'' ANA executes 
this purpose through the provision of project-based financial 
assistance to Native Americans authorized under sections 803 and 803C 
of the NAPA, as well as through advocacy on behalf of Native Americans 
within HHS and with other departments and agencies of the Federal 
Government ``regarding all Federal policies affecting Native 
Americans,'' under section 803B (c) of the NAPA.

Goal of This NPRM: Incorporation of Emergency Waiver Provision

    Current regulations (45 CFR 1336.50) state that grant recipients 
can only apply for a waiver for NFS at the time of application or while 
applying for a non-competitive continuation award. The on-going public 
health emergency has greatly impacted our recipients. The pandemic has 
greatly increased the risk of language and cultural decline among 
Native communities with many Elders dying from the COVID-19 virus. As 
tribes began closing their revenue generating businesses and other 
governmental operations due to the COVID-19 pandemic, they lost income 
they needed to fund Federal projects requiring a NFS. In addition, 
planned sources of income, such as use of tribal-owned facilities from 
which to operate the project, as part of the NFS also diminished. NAPA 
requires a 20 percent cost-share and match requirement. ANA's current 
cost-share waiver does not allow for a process to address a recipient's 
inability to meet the cost-share due to an emergency in the middle of a 
budget period. The proposed revisions to the regulations (45 CFR 
1336.50(b)(2)(ii)) add a provision allowing grant recipients to apply 
for an emergency waiver within the current budget period in order to 
remedy this burden.

II. Statutory Authority

    Pursuant to 42 U.S.C. 2991b of the NAPA, ANA is authorized to allow 
applicants the ability to submit a request for a waiver of the required 
20 percent non-Federal cost match, subject to ANA regulations.\1\
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    \1\ Native American Programs Act, 42 U.S.C. 2991b
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III. Section by Section Discussion of the Proposed Rule

    This NPRM proposes changes to 45 CFR part 1336, subpart E, 
Financial Assistance Provisions, in Sec.  1336.50. These changes will 
have no regulatory burden impact but will provide a waiver provision 
and ensure programmatic success of American Indian, Native Hawaiian, 
other Native American Pacific Islander (including American Samoan 
Natives), and Alaska Native-based recipients.

Section 1336.50 Financial and Administrative Requirements

    This section includes the conditions that must be met in order to 
submit a 20 percent, non-Federal, cost-sharing or match requirement. 
The proposed rule would amend the existing language and application 
requirements under Sec.  1336.50(b)(2). Specifically, we propose in 
Sec.  1336.50(b)(2)(i) that if an applicant anticipates that they will 
be unable to meet the cost-sharing or matching requirement and wishes 
to request a waiver of the requirement, they must include with the 
application for funding, the submission of a revised SF 424A, a written 
justification that clearly explains why the applicant cannot provide 
the matching share including the amount of non-Federal share to be 
waived, and how it meets the criteria indicated in the revised Sec.  
1336.50(b)(3)(ii). The request for a waiver must be submitted at the 
time of the initial application or Non-Competing Continuation (NCC) 
application.
    Further, the proposed rule adds a provision for an emergency waiver 
in Sec.  1336.50(b)(2)(ii) to include the ability to request a waiver 
during the budget period. If a recipient is unable to contribute part 
or all of the required non-Federal matching share during a budget 
period due to an emergency situation such as a natural disaster, man-
made disaster, act of terrorism, public health emergency, or other 
qualifying event, the recipient may request a waiver of all or part of 
the requirement for a 20 percent non-Federal matching share specified 
under Sec.  1336.50(b)(1).
    Finally, this proposed rule amends the language in Sec.  
1336.50(b)(3)(ii). We propose that an applicant should provide evidence 
of the emergency situation and document that reasonable efforts to 
obtain cash or in-kind contributions for the purposes of the project 
from third parties have been unsuccessful, including evidence and the 
results of such attempts. Evidence of such efforts can include letters 
from possible sources of funding or any relevant correspondence, 
indicating that the requested resources are not available for that 
project. The requests must be appropriate to the source in terms of 
project purpose, applicant eligibility, and reasonableness of the 
request.

IV. Regulatory Process Matters

Paperwork Reduction Act of 1995

    Section 1336.50(b) does not contain new information collection 
requirements. This action does not include any information collection 
requirements, only an additional circumstance that would allow for the 
submission of the information already outlined in the regulation.

Regulatory Flexibility Act

    The Secretary certifies, under 5 U.S.C. 605(b), and enacted by the 
Regulatory Flexibility Act (Pub. L. 96, 354), that this proposed rule 
will not result in a significant impact on a substantial number of 
small entities.

[[Page 69217]]

Treasury and General Government Appropriations Act of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a proposed 
policy or regulation may affect family well-being. If the agency's 
determination is affirmative, then the agency must prepare an impact 
assessment addressing criteria specified in the law. This regulation 
will not have an impact on family well-being as defined in this 
legislation, which asks agencies to assess policies with respect to 
whether the policy strengthens or erodes family stability and the 
authority and rights of parents in the education, nurturing, and 
supervision of their children; helps the family perform its functions; 
and increases or decreases disposable income.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
that a covered agency prepare a budgetary impact statement before 
promulgating a rule that includes any Federal mandate that may result 
in the expenditure by state, local, and tribal governments, in the 
aggregate, or by the private sector, of $141 million or more in any one 
year. The Department has determined that this proposed rule would not 
impose a mandate that will result in the expenditure by state, local, 
and tribal governments, in the aggregate, or by the private sector, of 
more than $100 million in any one year.

Federalism Assessment Executive Order 13132

    Executive Order 13132 on federalism applies to policies that have 
federalism implications, defined as ``regulations, legislative comments 
or proposed legislation, and other policy statements or actions that 
have substantial direct effects on the states, or on the distributions 
of power and responsibilities among the various levels of government.'' 
This rulemaking does not have federalism implications for state or 
local governments as defined in the Executive order.

Congressional Review

    This regulation is not a major rule as defined in 5 U.S.C. 8.

Executive Orders 12866 and 13563--Regulatory Impact Analysis

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if the 
regulation is necessary, to select the regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health, and safety effects; distributive impacts; and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. While there are some costs associated with these 
regulations, they are not economically significant as defined under 
Executive Order 12866. However, the regulation is significant and has 
been reviewed by Office of Management and Budget.
    The proposed regulation change would benefit recipients that have 
been financially impacted by an emergency event and are unable to meet 
their matching cost requirement, as required by the grant award. It 
would reduce the financial burden to recipients that need a waiver to 
provide the 20 percent cost share. Also, there is no cost to the agency 
other than the administrative time that it would take to review and 
approve the waiver request.

List of Subjects in 45 CFR Part 1336

    Disaster assistance, Emergency preparedness, Public health.

JooYeun Chang,
Acting Assistant Secretary for Children and Families.
    Approved:
Xavier Becerra,
Secretary.

    For reasons stated in the preamble, we propose to amend 45 CFR part 
1336 as follows:

PART 1336--NATIVE AMERICAN PROGRAMS

0
1. The authority citation for part 1336 continues to read as follows:

    Authority: 42 U.S.C. 2991 et seq.

0
2. Amend Sec.  1336.50 by revising paragraphs (b)(2) and (b)(3)(ii) to 
read as follows:


Sec.  1336.50  Financial and administrative requirements.

* * * * *
    (b) * * *
    (2) Application. If an applicant wishes to request a waiver of the 
requirement for a 20 percent non-Federal matching share, the follow 
conditions must be met:
    (i) If an applicant anticipates that it will be temporarily unable 
to meet the cost-sharing or matching requirement, the applicant may 
request a waiver of the 20 percent non-Federal matching share. It must 
include with its application for funding, the submission of a revised 
SF 424A, a written justification that clearly explains why the 
applicant cannot provide the matching share including the amount of 
non-Federal share to be waived, and how it meets the criteria indicated 
in paragraph (b)(3) of this section. A request for a waiver must be 
submitted at the time of the initial application or non-competing 
continuation (NCC) application.
    (ii) If a recipient is unable to contribute part or all of the 
required non-Federal matching share during a budget period due to an 
emergency situation such as a natural disaster, man-made disaster, act 
of terrorism, public health emergency, or other qualifying event, the 
recipient may request a waiver of all or part of the requirement for a 
20 percent non-Federal matching share specified under paragraph (b)(1) 
of this section. Any requests for an emergency waiver may be submitted 
at any time during a budget period as soon as the adverse effect is 
known to the recipient and must be submitted in accordance with the 
requirements specified in paragraph (b)(3) of this section.
    (3) * * *
    (ii) Applicant should document the reasonable efforts to obtain 
cash or in-kind contributions for the purposes of the project from 
third parties have been unsuccessful, including evidence and the 
results of such attempts. Evidence of such efforts can include letters 
from possible sources of funding or any relevant correspondence, 
indicating that the requested resources are not available for that 
project. The requests must be appropriate to the source in terms of 
project purpose, applicant eligibility, and reasonableness of the 
request.
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[FR Doc. 2021-25906 Filed 12-6-21; 8:45 am]
BILLING CODE 4184-34-P