[Federal Register Volume 86, Number 223 (Tuesday, November 23, 2021)]
[Proposed Rules]
[Pages 66491-66495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25401]
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DEPARTMENT OF THE INTERIOR
25 CFR Part 1000
[222A2100DD/AAKC001030/A0A501010.999900 253G]
Self-Governance PROGRESS Act Negotiated Rulemaking Committee
Establishment; Proposed Membership
AGENCY: Office of the Assistant Secretary--Indian Affairs, Interior.
ACTION: Proposed membership of Committee, notification of intent to
establish committee, and nominations.
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SUMMARY: The U.S. Department of the Interior (DOI) is announcing the
proposed members to form the Self-Governance PROGRESS Act Negotiated
Rulemaking Committee (Committee). The Committee will 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) to revise the regulations on Tribal Self-Governance
Annual Funding Agreements Under the Tribal Self-Governance Act
Amendments to the Indian Self-Determination and Education Act. This
document solicits comments on the proposed membership and the proposal
to establish the Committee and invites additional nominations for
Committee members who will adequately represent the interests that are
likely to be significantly affected by the proposed rule. The Secretary
also proposes to appoint Federal representatives to the Committee as
listed.
DATES: Comments must be submitted no later than December 23, 2021.
ADDRESSES: Send comments and nominations to the Designated Federal
Officer, Vickie Hanvey, by any of the following methods:
[[Page 66492]]
(Preferred method) Email to: [email protected];
Mail, hand-carry or use an overnight courier service to
the Designated Federal Officer, Ms. Vickie Hanvey, Office of the
Assistant Secretary--Indian Affairs, 1849 C Street NW, Mail Stop 4660,
Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: The Designated Federal Officer, Ms.
Vickie Hanvey, Program Policy Analyst, Office of Self-Governance,
Office of the Assistant Secretary--Indian Affairs; telephone: (918)
931-0745; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On October 21, 2020, the PROGRESS Act was signed into law and
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 the
self-governance relationship between the United States and Indian
Tribes. The purpose of the Committee is to serve as an advisory
committee under the Federal Advisory Committee Act (FACA) and the
Negotiated Rulemaking Act (NRA). The Committee will use a negotiated
rulemaking process to develop regulations for implementation of the
PROGRESS Act to amend, delete, and add provisions to the existing
regulations at 25 CFR part 1000, Annual Funding Agreements Under the
Tribal Self-Government Act Amendments to the Indian Self-Determination
and Education Act, which addresses Tribal Self-Governance compacts.
II. Proposed Work of the Committee
The objectives of the Committee are to represent the interests that
will be significantly affected by the final regulations, negotiate in
good faith, and reach consensus, where possible, on recommendations to
the Secretary for the proposed regulations.
The Committee will be charged, consistent with subchapter IV
regarding the Tribal Self-Governance Program, with developing proposed
regulations to implement the PROGRESS Act's provisions regarding the
DOI's Self-Governance Program. The proposed regulations will be
considered by the Secretary and subject to government-to-government
consultation.
The Committee will be 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 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. The Office of
Self-Governance has dedicated resources required to: ensure the
Committee is able to conduct meetings, provide technical assistance,
and provide any additional support required to fulfill the Committee's
responsibilities.
III. Proposed Tribal Committee Members
On February 1, 2021, the Office of Assistant Secretary--Indian
Affairs (AS-IA) published a Federal Register notice of intent (86 FR
7656) requesting comments and nominations for Tribal representatives
for the Committee. The comment period for that notice of intent closed
March 3, 2021.
Within the notice, AS-IA solicited comments on the proposal to
establish the Committee, including comments on any additional interests
not identified. AS-IA solicited nominations from Indian Tribes and
Tribal organizations as defined in section 4(I) 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,
the Tribal Self-Governance Program and who would be affected by the
final rule. AS-IA requested that these Tribes and Tribal organizations
nominate representatives to serve on the Committee.
The Secretary has selected 14 Tribal representatives (7 Primary, 7
Alternate) for the Committee and 12 Federal representatives (6 Primary,
6 Alternate) for the Committee, for a proposed total of 26 members (13
Primary, 13 Alternate). Primary representatives are voting members.
Both primary and alternate representatives are expected to attend all
meetings. Alternate representatives are to remain abreast of
discussions and to be prepared to vote in the event the Primary is
unavailable. The Designated Federal Officer (DFO) and Alternate DFO are
considered non-members of the Committee. The proposed Committee was
selected based upon nominations submitted through the process
identified in the Federal Register (85 FR 7656) dated February 1, 2021,
under the ``Nominations'' section. The Secretary did not consider
nominations that were received in any other manner or were received
after the deadline.
The Secretary proposes the following 14 Tribal representatives for
the Committee:
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Proposed committee member Affiliation
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W. Ron Allen, Chairman/CEO............. Jamestown S'Klallam Tribe.
Melanie Benjamin, Chief Executive...... Mille Lacs Band of Ojibwe.
Richard Peterson, President............ Central Council Tlingit and
Haida Indian Tribes of Alaska.
Michael Dolson, Councilman............. The Confederated Salish and
Kootenai Tribes of the
Flathead Nation.
Melanie Fourkiller, Director of Self- Choctaw Nation of Oklahoma.
Governance.
Russel (Buster) Attebery, Chairman..... Karuk Tribe.
Karen Fierro, Self-Governance Director. Ak-Chin Indian Community.
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The Secretary proposes the following alternate Tribal
representatives for the Committee:
[[Page 66493]]
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Proposed alternate committee member Affiliation
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Sandra Sampson, Board Treasurer........ Confederated Tribes of the
Umatilla Indian Reservation.
Jennifer Webster, Councilwoman......... Oneida Nation.
Gerry Hope, Transportation Director, Sitka Tribe of Alaska.
Former Tribal Leader.
Jody LaMere, Councilwoman.............. Chippewa Cree Tribe of the
Rocky Boy's Reservation.
Jacklyn King, Secretary................ Sac and Fox Nation.
Will Micklin, Second Vice President.... Central Council Tlingit and
Haida Indian Tribes of Alaska.
Annette Bryan, Council Member.......... Puyallup Tribe of Indians.
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IV. Proposed Federal Committee Members
The Designated Federal Officer for the Committee will be Ms. Vickie
Hanvey, Office of Self-Governance. The Secretary proposes the following
12 Federal representatives for the Committee:
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Name Affiliation
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Sharee Freeman, Director............... Office of Self-Governance,
Assistant Secretary--Indian
Affairs.
Bryan Shade, Attorney-Advisor.......... Branch of Self-Governance and
Economic Development, Office
of the Solicitor.
Vicki Cook, Native American and Bureau of Reclamation.
International Affairs Office.
Bryon Loosle, Division Chief........... National Conservation Lands,
Bureau of Land and Minerals
Management.
Scott Aikin, National Native American U.S. Fish and Wildlife Service
Programs Coordinator. Head Quarters.
Rose Petoskey, Senior Counselor to the Office of the Assistant
Assistant Secretary--Indian Affairs. Secretary--Indian Affairs.
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The Secretary proposes the following alternate Federal
representatives for the Committee:
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Name Affiliation
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Matt Kallappa, Northwest Field Office Office of Self-Governance,
Manager. Assistant Secretary--Indian
Affairs.
Jody Schwarz, Attorney-Advisor......... Branch of Self-Governance and
Economic Development, Office
of the Solicitor.
Kelly Titensor, Native American Affairs Bureau of Reclamation.
Advisor.
C. Dave Johnson, Tribal Liaison........ Bureau of Land and Minerals
Management.
Dorothy FireCloud, Native American National Park Service.
Affairs Liaison.
Samuel Kohn, Senior Counselor to the Office of the Assistant
Assistant Secretary--Indian Affairs. Secretary--Indian Affairs.
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V. Comments
The Secretary solicited comments on the proposal to establish the
Committee and received seven written responses submitted through the
process identified in the Federal Register (86 FR 7656) dated February
1, 2021. The Secretary did not consider comments that were received in
any other manner or were received after the close of the comment
period. The written comments were received from the Tribal Self-
Governance Title IV Task Force and the following six Tribes: (1)
Choctaw Nation of Oklahoma, (2) Central Council Tlingit and Haida
Indian Tribes of Alaska, (3) Squaxin Island Tribe, (4) Jamestown
S'Klallam Tribe, (5) Muscogee (Creek) Nation, and (6) Sac and Fox
Nation.
The Task Force and all Tribal commenters except one indicated the
Committee should be exempt from the Federal Advisory Committee Act
(FACA) based on the following: Members are either elected officials, or
employees with designated authority from an elected official to act on
their behalf, and so the Committee should be exempt from FACA under the
intergovernmental exemption in the Unfunded Mandates Reform Act (UMRA).
Response: The Unfunded Mandates Reform Act (UMRA) excepts certain
committees from compliance with FACA if the committee satisfies two
requirements. First, meetings between Federal and Tribal governments
must be held exclusively between Federal officials and elected officers
of State, local, and Tribal governments (or their representatives
acting in their official capacities. Second, the meetings must be
solely for the purpose of exchanging views, information or advice
relating to the management or implementation of Federal programs
established pursuant to public law that explicitly or inherently share
intergovernmental responsibilities or administration. See 2 U.S.C.
154(b). The Self-Governance PROGRESS Act Negotiated Rulemaking
Committee meets the first requirement but not the second. The Committee
is convened to negotiate and promulgate regulations to carry out
relevant provisions of the PROGRESS Act, not simply to exchange views,
information, or advice on the management or implementation of federal
programs. Accordingly, this Committee cannot be exempted from FACA
under UMRA.
All Tribal commenters and the Task Force indicated support for
using an independent facilitation and six specifically support using
the services of the Federal Conciliation and Mediation Service (FMCS).
Response: Under 5 U.S.C. 565(c), DOI may nominate either a person
from the Federal Government or a person from outside the Federal
Government to serve as a facilitator for the negotiations of the
Committee, subject to the approval of
[[Page 66494]]
the Committee by consensus. DOI will consider the nomination of FMCS as
a facilitation team.
The Task Force and several of the Tribal commenters indicated: (1)
Section IV of the notice was unclear about the nomination of primary
and alternative representatives creating confusion if a Tribe should
submit a primary and alternate, each region submit a primary and
alternate, or each nomination should specify where it is for the
primary or alternate representative; (2) the notice indicates Committee
members must be able to attend all meetings but then states an
alternate who can fulfill the obligations of membership should the
primary be unable to attend; (3) selection of Committee members
surrounds the use of the terms representation of Tribes with a
geographic balance; (4) the deadline was confusing and it seemed
contradictory to establish a hard deadline but then state you will
accept additional nominations after the deadline passes.
Response: (1) A Tribe or Tribal Organization may submit either a
primary or alternate representative or both. (2) Primary and alternate
candidates will both be expected to attend all meetings. Primary
representatives are voting members. Alternate representatives are
expected to attend all meetings to remain abreast of discussions and to
be prepared to vote in the event the primary is unavailable. (3)
Proposed committee membership was based upon elected Tribal leadership
or Tribal official, Tribal size, balanced geographical representation
(by geographic region, state, or other geographical determination) (4)
Section VI. Nominations of this document clarifies that additional
nominations may be offered after proposed committee membership has been
published.
The Task Force and two Tribal commenters indicated: (1) Travel and
per diem provisions were hard to decipher and, in some instances,
seemed contradictory; (2) the notice is unclear with respect to who is
responsible for travel expense; (3) provide travel support to all
Tribal representatives without evidence of financial resources.
Response: The Negotiated Rulemaking Act section 568(c) states that
members of a negotiated rulemaking committee shall be responsible for
their own expenses of participation in such committee, except that an
agency may, in accordance with section 7(d) of the Federal Advisory
Committee Act, pay for a member's reasonable travel and per diem
expenses, expenses to obtain technical assistance, and a reasonable
rate of compensation, if:
(1) Such member certifies a lack of adequate financial resources to
participate in the committee; and
(2) 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 will follow the statutory requirements within the
Negotiated Rulemaking Act as well as the Federal Advisory Committee Act
referenced above. The DOI will provide travel and per diem expenses for
the Committee as funding allows.
One Tribal commenter requested clarification on: (1) Next steps for
submitting nominations on first Federal Register notice; (2) submitting
nominations through a second Federal Register notice and the deadline;
(3) inaugural meeting of the Committee.
Response: (1) Nominations submitted through the process identified
in the Federal Register (85 FR 7656) dated February 1, 2021, under the
``Nominations'' section closed on March 3, 2021. (2) Section VI
Nominations of this document allows for additional nominations to be
considered for this Committee. (3) After considering comments and
nominations for Tribal representatives, the DOI will publish a Federal
Register Notice of Establishment and will indicate the proposed meeting
schedule.
VI. Nominations
If you are an Indian Tribe or Tribal organization as defined in
section 4(I) of the Indian Self-Determination and Education Assistance
Act that is currently participating in the Tribal Self-Governance
Program or that is not currently participating in, but is interested in
participating in Tribal Self-Governance Program, we invite you to
comment on the proposed nominations in this document. If there is no
adequate representation of those interests that will be significantly
affected by a proposed rule, we invite you to nominate other persons
for membership on the Committee. The Committee membership should
reflect the diversity of Tribal 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)
represented;
[cir] Commit to time and effort required to attend and prepare for
meetings; and
[cir] Collaborate among diverse parties in a consensus-seeking
process.
The Secretary will consider nominations for representatives only if
they are nominated through the process identified in this notification
of intent and in the Federal Register notice of intent at 86 FR 7656.
The Secretary will not consider any nominations received in any other
manner. The Secretary 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
nominee:
(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 (identified in
this document) 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
representing; and
(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.
VII. Public Disclosure of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that
[[Page 66495]]
your entire nomination submission--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your submission to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
VIII. Authority
The Practical Reforms and Other Goals To Reinforce the
Effectiveness of Self-Governance and Self-Determination for Indian
Tribes Act of 2019 (PROGRESS Act), Public Law 116-180 dated October 21,
2020.
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2021-25401 Filed 11-22-21; 8:45 am]
BILLING CODE 4337-15-P