[Federal Register Volume 88, Number 100 (Wednesday, May 24, 2023)]
[Proposed Rules]
[Pages 33552-33555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10631]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 88, No. 100 / Wednesday, May 24, 2023 / 
Proposed Rules  

[[Page 33552]]



DEPARTMENT OF AGRICULTURE

Rural Business-Cooperative Service

Rural Utilities Service

7 CFR Chapter XLII

[Docket #: RBS-23-BUSINESS-0006]
RIN 0570-AB10


Rural Business Development Grant (RBDG) Regulation: Tribes and 
Tribal Business References To Provide Equitable Access

AGENCY: Rural Business-Cooperative Service and Rural Utilities Service, 
USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Rural Business Development Grant (RBDG) Program is 
intended for governmental entities and non-profits that foster economic 
development, job creation and business creation in rural and Tribal 
communities. Eligible applicants for RBDG assistance include rural 
towns, communities, State agencies, authorities, nonprofit 
corporations, institutions of higher education, Federally recognized 
Tribes (https://www.bia.gov/service/tribal-leaders-directory) and 
cooperatives (if organized as a private nonprofit corporation). USDA 
intends to improve Tribal Government participation in the program. This 
proposed rule seeks to increase Tribal Government participation with 
programmatic amendments.

DATES: Comments must be submitted on or before July 24, 2023.

ADDRESSES: Comments may be submitted by going to the Federal 
eRulemaking Portal at https://www.regulations.gov/ and in the ``Search 
Documents'' box, enter the Docket # (RBS-23-BUSINESS-0006) or the RIN # 
(0570-AB10) of this proposed rule, and click the ``Search'' button. To 
submit a comment, select the ``Comment'' button associated with the 
proposed rule. Information on using Regulations.gov, including 
instructions for accessing documents, submitting comments, and viewing 
the docket after the close of the comment period, is available by 
selecting ``FAQ'' at the bottom of the page.
    Additional information about RBDG is available at https://www.rd.usda.gov/programs-services/business-programs/rural-business-development-grants.

FOR FURTHER INFORMATION CONTACT: For questions on this document contact 
Will Dodson, Branch Chief, Intermediary Programs, Program Management 
Division, Rural Business-Cooperative Service, 1400 Independence Ave. 
SW, Stop 3201, Washington, DC 20250; telephone, 202-690-4730; email, 
[email protected]. Persons with disabilities that require 
alternative means for communication should contact the USDA Target 
Center at (202) 720-2600 (voice) or 711 Relay Service.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 25, 2015, Rural Business-Cooperative Service (RBCS or the 
Agency), a Rural Development (RD) agency of the USDA, published an 
interim final rule with comment, 80 FR 15665, for the RBDG Program. The 
interim final rule with comment ensured the Agency had a regulation in 
place to meet the Congressional mandate established in the Agricultural 
Act of 2014 (2014 Farm Bill). The RBDG Program is targeted at public 
governmental entities, including Tribal Governments, and non-profit 
entities, which in turn empower business and market development. 
However, following implementation of the interim final rule, the Agency 
received regular feedback through Tribal consultation that the interim 
final rule did not adequately define and address how Tribes legally 
structure their businesses and related enterprises as arms or 
instrumentalities of Tribes. The Program did not previously identify 
tribally-owned businesses separate from Tribal Governments. This nuance 
effectively prevented full access to participation for Tribes and 
Tribally owned businesses.
    Tribal Governments do not maintain a tax base, therefore, Tribes 
often establish corporate or other business entities as government arms 
or instrumentalities to provide for a public (Tribal) good or generate 
revenue for the provision of public (Tribal) goods by the Tribal 
Government. These Tribal Government entities often significantly 
contribute to their local economy through employment of Tribal and non-
Tribal members (non-Tribal United States citizens), job training and 
advancement opportunities, and by filling gaps in commerce across 
Tribal lands that are often food, economic, and credit deserts. The 
Federal Government maintains a treaty and trust responsibility to 
provide for economic self-sufficiency among Indian Tribes.
    Consistent input from Tribal Governments and Tribal stakeholders 
indicated that the RBDG Program has experienced reduced participation 
of Tribal Governments and Tribal entities, since inception of the 
Program. This reduction in participation is due to policies that have 
not fully considered or included the range of strategies that Tribal 
nations employ to build Tribal markets and economies through government 
arms and instrumentalities. Historically, Tribes have not fully 
utilized the RBDG Program due to Agency policy, which does not 
adequately consider the range of entities that Tribal nations 
incorporate, specifically, entities that are Tribal Government owned 
and operated to foster economic development and promote meaningful 
employment, while also generating revenue for the Tribal Government. 
The complex legal and political structure and nature of Tribal nations 
and these Tribal entities necessitates a close relationship between 
both entities with ownership and control remaining with the Tribal 
Governments. The amendments update and codify the Agency's policy 
regarding Tribal nations and their Tribal owned entities.

II. Summary of Changes to the Rule

Administrative Change

    The RBDG Program (7 CFR part 4280) is currently listed under 
chapter XLII, Rural Business-Cooperative Service and Rural Utilities 
Service, Department of Agriculture, along with Direct and Insured 
Loanmaking (7 CFR part 4274), Guaranteed Loanmaking (7 CFR part 4279), 
Grants (7 CFR part 4284), Cooperative Agreements (7 CFR part 4285), 
Servicing (7 CFR part 4287), Payment Programs (7 CFR part 4288), and 
Rural Business Investment Company (``RBIC'') Program (part 7 CFR

[[Page 33553]]

part 4290). This proposed rule will update the ownership of chapter 
XLII to remove Rural Utilities Service as these programs are all under 
RBCS exclusively.

Section 4280.403 Definitions

    The definitions section is being revised to add and revise 
definitions.
    Conflict of Interest. The Conflict of interest definition is added 
to codify the Agency's interpretation of the relationship of Tribal 
nations and their Tribal owned entities to expand eligibility 
opportunities for Tribal applicants.
    Indian Tribe (Tribal). The current operating definition for Indian 
Tribe (Tribal) is being revised to Indian Tribe (Tribal), Tribal 
Government, and/or Federally Recognized Tribes. Historically, the 
Program has utilized the list of Federally Recognized Tribes published 
by the Bureau of Indian Affairs to determine if a Tribe was eligible to 
directly apply for RBDG assistance. No change to the current policy is 
being implemented and the statutory cite for this policy will now be 
included within the regulation. Eligible applicants for RBDG assistance 
continue to be rural Towns, Communities, State agencies, Authorities, 
Nonprofit corporations, Institutions of higher education, Federally 
Recognized Tribes (https://www.bia.gov/service/tribal-leaders-directory) and cooperatives (if organized as a private nonprofit 
corporation).
    Small and Emerging Business. The Small and Emerging Business 
definition is being revised to add language to clarify the relationship 
of Tribal Governments and Tribal owned entities. Specifically, the 
management and Board of Directors of the Tribal government owned entity 
or business do not have to be independent of the Tribal Council. 
Language has also been added to clarify that the asset and employee 
size limitations to qualify as a small and emerging business are 
limited to the Tribal entity that is applying for assistance and is not 
intended to be inclusive of all Tribal assets or all Tribal employees. 
Consequently, it is anticipated that required financial documentation 
required for Program participation will be limited to the immediate 
Tribal entity that is applying for the assistance and not required for 
the Tribe or its other Tribal entities, unless the Tribe itself is the 
applicant. These amendments were made in accordance with direct Tribal 
input conducted through Tribal consultation and will improve Tribal 
Government accessibility to both the regular RBDG Program and RBDG 
funds appropriated specifically to support projects that benefit 
Federally Recognized Tribes and their members.

Section 4280.500 OMB Control Number

    On March 25, 2015, RBCS published an interim final rule with 
comment for the RBDG Program, 80 FR 15665, that assigned Office of 
Management and Budget (OMB) control numbers 0570-0022 and 0570-0024 in 
accordance with the Paperwork Reduction Act of 1995 (PRA). OMB control 
numbers 0570-0022 and 0570-0024 have been discontinued as of 2016. A 
new collection package in accordance with PRA was issued in 2016 and 
the new OMB control number is 0570-0070.

III. Executive Orders/Acts

Executive Order 12866--Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this 
proposed rule as not a major rule, as defined by 5 U.S.C. 804(2).

Assistance Listing Number (Formally Known as the Catalog of Federal 
Domestic Assistance)

    The Assistance Listing Number assigned to the RBDG Program is 
10.351. The Assistance Listings are available on the internet at 
https://sam.gov/.

Executive Order 12372--Intergovernmental Consultation

    This program is subject to the provisions of Executive Order 12372, 
which require intergovernmental consultation with State and local 
officials. RBCS conducts intergovernmental consultations for each loan 
in accordance with 2 CFR part 415, subpart C. However, Tribes and 
Tribal entities as defined in this proposed rule are exempt of this 
requirement.

Information Collection and Recordkeeping Requirements

    This proposed rule contains no new reporting or recordkeeping 
burdens under OMB control number 0570-0070 that would require approval 
under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

National Environmental Policy Act

    In accordance with the National Environmental Policy Act of 1969, 
Public Law 91-190, this proposed rule has been reviewed in accordance 
with 7 CFR part 1970 (``Environmental Policies and Procedures''). The 
Agency has determined that (i) this action meets the criteria 
established in 7 CFR 1970.53(f); (ii) no extraordinary circumstances 
exist; and (iii) the action is not ``connected'' to other actions with 
potentially significant impacts, is not considered a ``cumulative 
action,'' and is not precluded by 40 CFR 1506.1. Therefore, the Agency 
has determined that the action does not have a significant effect on 
the human environment, and therefore neither an Environmental 
Assessment nor an Environmental Impact Statement is required.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-602) (RFA) generally 
requires an agency to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (``APA'') or any other statute. The APA 
exempts from notice and comment requirements rules ``relating to agency 
management or personnel or to public property, loans, grants, benefits, 
or contracts'' (5 U.S.C. 553(a)(2)), so therefore an analysis has not 
been prepared for this proposed rule.

Executive Order 12988--Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988. 
In accordance with this proposed rule: (1) unless otherwise 
specifically provided, all State and local laws that conflict with this 
rule will be preempted; (2) no retroactive effect will be given to this 
rule except as specifically prescribed in the rule; and (3) 
administrative proceedings of the National Appeals Division of the 
Department of Agriculture (7 CFR part 11) must be exhausted before 
bringing suit in court that challenges action taken under this rule.

Unfunded Mandate Reform Act (UMRA)

    Title II of the UMRA, Public Law 104-4, establishes requirements 
for Federal Agencies to assess the effects of their regulatory actions 
on State, local, and Tribal Governments and on the private sector. 
Under section 202 of the UMRA, Federal Agencies generally must prepare 
a written statement, including cost-benefit analysis, for proposed and 
final rules with ``Federal mandates'' that

[[Page 33554]]

may result in expenditures to State, local, or Tribal Governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one-year. When such a statement is needed for a rule, section 205 of 
the UMRA generally requires a Federal agency to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, more cost-effective, or least burdensome alternative that 
achieves the objectives of the rule.
    This proposed rule contains no Federal mandates (under the 
regulatory provisions of title II of the UMRA) for State, local, and 
Tribal Governments or for the private sector. Therefore, this proposed 
rule is not subject to the requirements of sections 202 and 205 of the 
UMRA.

Executive Order 13132--Federalism

    It has been determined, under E.O. 13132, Federalism, that the 
policies contained in this proposed rule do not have any substantial 
direct effect on 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. Nor does this 
proposed rule impose substantial direct compliance costs on State and 
local Governments. Therefore, consultation with the States is not 
required.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    This proposed rule has been reviewed in accordance with the 
requirements of Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments.'' Executive Order 13175 requires 
Federal agencies to consult and coordinate with tribes on a Government-
to-Government basis on policies that have tribal implications, 
including regulations, legislative comments or proposed legislation, 
and other policy statements or actions that have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes.
    RBCS has determined that the rule does have a substantial direct 
effect on one or more Indian tribe(s) or on either the relationship or 
the distribution of powers and responsibilities between the Federal 
Government and Indian Tribes but reflects a remedy to RBDG Tribal 
barriers identified in Tribal consultation, including recent Tribal 
consultations on equity hosted in March 2021 and April 2022. USDA will 
hold an additional follow-up Tribal consultation for input during the 
60-day comment period. Additionally, if a Tribe requests Government-to-
Government consultation regarding this rule, the Agency will work with 
the USDA Office of Tribal Relations to ensure meaningful consultation 
is provided. Interested Tribal leaders are encouraged to contact the 
Office of Tribal Relations or RD's Tribal Coordinator at [email protected] 
to request such a consultation.

E-Government Act Compliance

    Rural Development is committed to the E-Government Act of 2002, 
Public Law 107-347, which requires Government agencies in general to 
provide the public the option of submitting information or transacting 
business electronically to the maximum extent possible and to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

Civil Rights Impact Analysis

    Rural Development has reviewed this proposed rule in accordance 
with USDA Regulation 4300-4, ``Civil Rights Impact Analysis,'' to 
identify any major civil rights impacts the rule might have on program 
participants on the basis of age, race, color, national origin, sex, or 
disability. Based on the review and analysis of the proposed rule and 
all available data, issuance of this proposal is not likely to 
negatively impact low and moderate-income populations, minority 
populations, women, Indian tribes or persons with disability, by virtue 
of their age, race, color, national origin, sex, disability, or marital 
or familial status. No major civil rights impact is likely to result 
from this proposed rule.

USDA Non-Discrimination Statement

    In accordance with Federal civil rights laws and U.S. Department of 
Agriculture (USDA) civil rights regulations and policies, the USDA, its 
mission areas, agencies, staff offices, employees, and institutions 
participating in or administering USDA programs are prohibited from 
discriminating based on race, color, national origin, religion, sex, 
gender identity (including gender expression), sexual orientation, 
disability, age, marital status, family/parental status, income derived 
from a public assistance program, political beliefs, or reprisal or 
retaliation for prior civil rights activity, in any program or activity 
conducted or funded by USDA (not all bases apply to all programs). 
Remedies and complaint filing deadlines vary by program or incident.
    Program information may be made available in languages other than 
English. Persons with disabilities who require alternative means of 
communication to obtain program information (e.g., Braille, large 
print, audiotape, American Sign Language) should contact the 
responsible mission area, agency, or staff office; the USDA TARGET 
Center at (202) 720-2600 (voice and TTY); or the 711 Relay Service.
    To file a program discrimination complaint, a complainant should 
complete a Form AD-3027, USDA Program Discrimination Complaint Form, 
which can be obtained online at https://www.usda.gov/sites/default/files/documents/ad-3027.pdf from any USDA office, by calling (866) 632-
9992, or by writing a letter addressed to USDA. The letter must contain 
the complainant's name, address, telephone number, and a written 
description of the alleged discriminatory action in sufficient detail 
to inform the Assistant Secretary for Civil Rights (ASCR) about the 
nature and date of an alleged civil rights violation. The completed AD-
3027 form or letter must be submitted to USDA by:
    (1) Mail: U.S. Department of Agriculture, Office of the Assistant 
Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 
20250-9410; or
    (2) Fax: (833) 256-1665 or (202) 690-7442; or
    (3) Email: [email protected].
    USDA is an equal opportunity provider, employer, and lender.

List of Subjects in 7 CFR Part 4280

    Business and industry, Energy, Grant programs--business, Loan 
programs--business, and Rural areas.

    For the reasons discussed in the preamble, 7 CFR chapter XLII is 
amended as follows:

0
1. Under the authority of 5 U.S.C. 301 and 7 U.S.C. 1989, the heading 
for chapter XLII is revised to read as follows:

Chapter XLII Rural Business-Cooperative Service, Department of 
Agriculture

PART 4280--LOANS AND GRANTS

0
2. The authority citation for part 4280 is revised to read as follows:

    Authority:  7 U.S.C. 1989(a), 7 U.S.C. 2008s

Subpart E--Rural Business Development Grants

0
3. Amend Sec.  4280.403 by:

[[Page 33555]]

    a. Adding ``Conflict of interest'' in alphabetical order and 
revising ``Indian Tribe (Tribal)'' and ``Small and Emerging Business''. 
The addition and revisions read as follows:


Sec.  4280.403  Definitions.

* * * * *
    Conflict of Interest. When the grantee's employees, Board of 
Directors, or their immediate families have a legal or personal 
financial interest in the recipient(s) receiving the benefits or 
services of the grant. Tribal Governments, subdivisions of Tribal 
Governments (chapters, districts, authorities, townships, etc.), and 
Tribal arms and instrumentalities, entities wholly-owned and chartered 
by Tribal Governments including but not limited to: Tribal owned 
corporations (including Section 17 Corporations, Community Development 
Corporations and Economic Development Corporations), Tribal owned 
businesses, Tribal owned authorities, Tribal owned utilities, other 
Tribally owned enterprises and their subsidiaries will not be 
considered as having a conflict of interest due to their, or their 
Board's, ties to their associated Tribe or each other.
* * * * *
    Indian Tribe (Tribal), Tribal Government and/or Federally 
Recognized Tribes. Any Indian or Alaska Native tribe, band, nation, 
pueblo, village or community as defined by the Federally Recognized 
Indian Tribe List Act (List Act) of 1994 (Pub. L. 103-454).
* * * * *
    Small and Emerging Business. Any private and/or nonprofit business 
which will employ 50 or fewer new employees and has less than $1 
million in gross revenue; for retail operations, gross revenue may be 
reduced by cost of goods sold and returns or for a service 
organization, gross revenue may be reduced by the cost of providing 
service or for a manufacturing operation, gross revenue may be reduced 
by the cost of raw materials and the cost of production. The $1 million 
gross revenue and 50 or fewer new employee thresholds apply only to 
each individual Tribal owned enterprise applicant or recipient. Due to 
the unique structuring of Tribal economic development, the revenue or 
employees of the Tribe and/or parent Tribal enterprise will not apply 
towards the individual Tribal enterprise applicant or recipient, 
regardless of shared ownership or Directors. The revenue of Tribes, 
subdivisions of Tribes and Tribal entity applicants, will not be 
considered revenue in determining program and project eligibility.
* * * * *
0
4. Revise Sec.  4280.500 to read as follows:


Sec.  4280.500  OMB control number.

    The reporting and recordkeeping requirements contained in this part 
have been approved by the Office of Management and Budget (OMB) under 
the provisions of 44 U.S.C. chapter 35 and have been assigned OMB 
control numbers 0570-0070 in accordance with the Paperwork Reduction 
Act of 1995. You are not required to respond to this collection of 
information unless it displays a valid OMB control number.

Karama Neal,
Administrator, Rural Business-Cooperative Service, USDA Rural 
Development.
Andrew Berke,
Administrator, Rural Utilities Service, USDA Rural Development.
[FR Doc. 2023-10631 Filed 5-23-23; 8:45 am]
BILLING CODE 3410-XY-P