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Native American Programs rule (2023)

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The Native American Programs rule is a significant rule issued by the Administration for Native Americans (ANA), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS) effective April 28, 2023, that provided an application process for recipients of ANA grants to request a cost-share waiver during times of emergency. This rule is in accordance with the Native American Programs Act of 1974 (NAPA).[1]

HIGHLIGHTS
  • Name: 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
  • Type of significant rule: Other significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

    The Native American Programs Act of 1974 (NAPA) intended to promote "economic and social self-sufficiency for American Indians, Native Hawaiians, other Native American Pacific Islanders (including American Samoan Natives), and Alaska Natives,” according to section 802 of the act. Ana provides financial support and advocacy to these ends, pursuant to NAPA. ANA grant recipients are required to pay a Non-Federal Share (NFS), or cost share, that is 20% of their project costs. When the COVID-19 pandemic hit, revenue-generating projects closed or saw decreased revenue as Native American communities suffered sickness and loss of lives. Before the Native American Programs rule, the cost-share waiver did not allow applicants in the middle of a budget period; the final rule now allows grant recipients to apply for an NFS waiver in the middle of a budget period due to emergencies.

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    “ 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.[1][3] ”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “

    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 § 1336.50(b)(2) to provide additional detail. Specifically, § 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 § 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 § 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 § 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 § 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 § 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.[3]

    		”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the Native American Programs rule states that OMB deemed this rule significant, but not economically significant:

    “ 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.[3] ”

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Federal Register, "Native American Programs," December 5, 2023.
    2. ↑ Federal Register, "Native American Programs," December 5, 2023.
    3. ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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