[Federal Register Volume 88, Number 38 (Monday, February 27, 2023)]
[Rules and Regulations]
[Pages 12224-12226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03994]


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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: Final rule.

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SUMMARY: This final rule provides a process for ANA grant recipients to 
request a waiver for part or all of their non-Federal cost share or 
match (NFS) during a budget period due to emergency circumstances.

DATES: This rule is effective on April 28, 2023.

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: 

Contents

I. Background
II. Statutory Authority
III. Discussion of Changes From the Notice of Proposed Rulemaking to 
Final Rule
IV. Discussion of the Final Rule
V. Comments Received and Response
VI. 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 Final Rule: Incorporation of Emergency Waiver Provision

    On December 7, 2021, ANA published a notice of proposed rulemaking 
(NPRM) to update existing waiver requirements to allow an opportunity 
to request a waiver of the non-Federal cost share (NFS) in the event of 
an emergency. 86 FR 69215. The NAPA requires applicants and recipients 
to provide an NFS of 20 percent of project costs, unless waived by the 
Commissioner of ANA pursuant to objective criteria established by 
regulation. Current regulations (45 CFR 1336.50) only permit 
``applicants'' to apply for a waiver of the NFS, which ANA has 
interpreted as applicants for the initial awards and applicants for 
non-competing continuation (NCC) awards. The on-going public health 
emergency has greatly impacted ANA 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 
and in-kind contributions they needed to fund Federal projects 
requiring a NFS. In addition, planned sources of match support, such as 
use of tribal-owned facilities from which to operate the project, as 
part of the NFS, also diminished. 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. This 
final rule adds a provision (45 CFR 1336.50(b)(2)(ii)) allowing grant 
recipients to apply for an emergency waiver within the current budget 
period 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 share or match, subject to ANA regulations.

III. Discussion of Changes From the NPRM to Final Rule

    The changes made in this final regulation, as compared with the 
proposed rule, are as follows:
    1. The final rule amends the word ``follow'' to the word 
``following'' in 45 CFR 1336.50(b)(2). The change fixes a typographical 
error in the NPRM.
    2. The final rule removes the word ``temporarily'' in 45 CFR 
1336.50(b)(2)(i). The word had been added to the regulation in the 
proposed rule to indicate that applicants who sought a waiver would 
have to apply for the waiver again when applying for the NCC award. But 
upon further review, ANA believes the word adds confusion rather than 
clarity. The removal does not change ANA's process or the substance of 
the rule.
    3. The final rule adds the word ``recipient(s)'' in 45 CFR 
1336.50(b)(2) and (3). The NPRM proposed to add an option for 
recipients to apply for a waiver but did not add the word recipient to 
the other paragraphs that cover waiver applications. The final rule 
adds the word ``recipient'' to make clear that these sections on 
waivers cover both applicants and recipients.
    4. The final rule adds text in 45 CFR 1336.50(b)(2)(i) that both an 
applicant for an initial award and an applicant for an NCC award can 
apply for a waiver. The final rule adds this text to set out explicitly 
ANA's interpretation of the current rule and the intention of the NPRM.
    5. The final rule changes the NPRM use of the word ``should'' to 
``can'' in 45 CFR 1336.50(b)(3)(ii). The current regulations use the 
word ``can'' in Sec.  1336.50(b)(3)(ii). Changing the word to 
``should'' was a drafting error that inadvertently changed the meaning 
of one of the criteria of the waiver. ANA never intended to change the 
criteria for the waiver and the final rule ensures that the criteria 
remain unchanged.

IV. Discussion of the Final Rule

    This final rule makes 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.

[[Page 12225]]

Section 1336.50 Financial and Administrative Requirements

    Recipients of financial assistance under sections 803, 804, and 805 
of NAPA are required to provide a matching share of 20 percent of the 
approved cost of the assisted project. Title 45 CFR 1335.50(b)(2) and 
(3) provide a process for requesting a waiver for the match. The final 
rule makes several changes to the language in these paragraphs.
    The final rule amends the existing language and application 
requirements under Sec.  1336.50(b)(2) to provide additional detail. 
Specifically, Sec.  1336.50(b)(2)(i) will require 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 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 supporting evidence for 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 NCC application.
    The final rule makes two changes from the current version of Sec.  
1336.50(b)(2)(i). The final rule adds that the written justification 
for the waiver must include the amount of the NFS to be waived. This 
addition reflects how the agency handles waiver requests in practice 
because not every applicant will need a waiver of the full 20 percent 
match requirement. The final rule also states that either an applicant 
for the initial award or an applicant for the NCC can apply for the 
waiver, which is how ANA currently interprets the regulations. All 
these additions are statements of current practice and not substantive 
amendments to the waiver procedure.
    The final 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 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). ANA has included ``other qualifying event'' to encompass 
events, like the pandemic, that cannot be foreseen by ANA at this time 
but could abruptly cause the recipient to be unable to meet the match 
requirement.
    Finally, this final rule amends the language in Sec.  
1336.50(b)(3)(ii). The criteria to be approved for a waiver is not 
changed by this rule. Recipients 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. This section added ``any relevant correspondence'' to indicate 
that relevant correspondence can be sent in any form other than a 
letter.

V. Comments Received and Response

    ANA received comments from a federally recognized tribe, an 
individual, and an anonymous commenter. All comments were positive in 
support of the amended regulation to allow for a process for recipients 
to request a NFS waiver during the budget period if they are 
experiencing an emergency such as the COVID-19 pandemic.
    Comment: An emergency waiver ``would encourage tribes to continue 
language, cultural and unique economic development programs that would 
otherwise be postponed or cancelled.''
    Response: ANA concurs.
    Comment: Two comments opposed the requirement that applicants or 
recipients seeking a waiver provide documentation of unsuccessful 
efforts to obtain cash or in-kind contributions for the project.
    Response: This requirement is an existing criteria for NFS waiver. 
The final rule does not modify the existing criteria in the 
regulations.

VI. 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), as enacted by the 
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not 
result in a significant impact on a substantial number of small 
entities.

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 in any one year by state, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million (1995 dollars), updated annually for inflation. The 2022 
threshold is approximately $165 million. The Department has determined 
that this 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 $165 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, on the relationship 
between the national government and the States, or on the distribution 
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.

[[Page 12226]]

Congressional Review

    This regulation is not a major rule as defined in 5 U.S.C. 804.

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 regulation change will 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. To the extent that this final rule results 
in transfers, they will not exceed the threshold for economic 
significance because the total funding level for the program is below 
the threshold. Also, there is no cost to the agency other than the 
administrative time that it would take to review and if approved, 
process the waiver request.
    January Contreras, Assistant Secretary of the Administration for 
Children and Families, approved this document on January 24, 2023.

List of Subjects in 45 CFR Part 1336

    Disaster assistance, Emergency preparedness, Native Americans, 
Public health.

    Dated: February 22, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
    For the reasons stated in the preamble, we 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 (3) to read as 
follows:


Sec.  1336.50  Financial and administrative requirements.

* * * * *
    (b) * * *
    (2) Application. If an applicant or recipient wishes to request a 
waiver of the requirement for a 20 percent non-Federal matching share, 
the following conditions must be met:
    (i) If an applicant for an initial award or an applicant for a non-
competing continuation award anticipates that it will be 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 SF424A, 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. For an applicant for an initial award, or an applicant 
seeking a non-competing continuation award, 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) Criteria. Both of the following criteria must be met for an 
applicant or recipient to be eligible for a waiver of the non-Federal 
matching requirement:
    (i) Applicant or recipient lacks the available resources to meet 
part or all of the non-Federal matching requirement. This must be 
documented by an institutional audit if available, or a full disclosure 
of applicant's or recipient's total assets and liabilities.
    (ii) Applicants or recipients can 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.
* * * * *
[FR Doc. 2023-03994 Filed 2-24-23; 8:45 am]
BILLING CODE 4184-34-P