# May I appeal a decision about my application?
**AGENCY:**
Bureau of Indian Affairs, Interior.
**ACTION:**
Final Rule.
**SUMMARY:**
This final rule consolidates requirements governing the Employment Assistance Program and the Adult Vocational Training Program. These programs assist eligible Indian people to obtain job skills and to obtain and retain permanent employment. Combining these regulations is consistent with changes to the Department's budget, which has combined these two regulations into one line item.
**DATES:**
This rule is effective on September 16, 2009.
**FOR FURTHER INFORMATION CONTACT:**
Robert W. Middleton, Ph.D., Director, Office of Indian Energy and Economic Development, either by facsimile at (202) 208-4564, or by mail to 1951 Constitution Avenue, NW., Mailstop 20-SIB, Washington, DC 20245.
**SUPPLEMENTARY INFORMATION:**
I. Background
II. Statutory Authority
III. Discussion of Public Comments on Proposed Rule
IV. Procedural Requirements
A. Civil Justice Reform (Executive Order 12988)
B. Regulatory Planning and Review (Executive Order 12866)
C. Regulatory Flexibility Act
D. Takings (Executive Order 12630)
E. Federalism (Executive Order 13132)
F. National Environmental Policy Act
G. Unfunded Mandates Act of 1995
H. Paperwork Reduction Act of 1995
I. Consultation With Indian Tribes (Executive Order 13175)
J. Small Business Regulatory Enforcement Fairness Act (SBREFA)
K. Information Quality Act
L. Effects on the Energy Supply (E.O. 13211)
V. Drafting Information
**I. Background**
This final rule amends 25 CFR parts 26 and 27 by consolidating requirements governing the Employment Assistance Program and the Adult Vocational Training Program into one “Job Placement and Training Program.” This revision is consistent with the Department of the Interior's budget, which has integrated the two programs, Adult Vocational Training and the Direct Employment programs, into one comprehensive line item: the Job Placement and Training Program. The revision of this regulation was previously recommended by the Public Law 102-477 Tribal Work Group, Indian tribes, and BIA program staff and is part of the President's Regulatory Reform Initiative. The purpose of the Department of the Interior's Job Placement and Training Program is to enhance employment opportunities for eligible Indians and to provide related services as necessary for them to gain full self-sufficiency or non-subsidized employment. The program services are not intended to duplicate or supplant other job placement or training authorities, resources, or services, but are designed to complement and supplement where there may be gaps in an individual self-sufficiency plan. This program's emphasis will focus on individual self-sufficiency through the implementation of a well-conceived plan that is designed to improve the individual's standard of living. The program may be administered through the Self-Determination or Self-Governance process, Public Law 102-477 Tribal Plan authority, or other similar authorities.
**II. Statutory Authority**
The authority to issue rules and regulations is vested in the Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of the Revised Statutes (25 U.S.C. 2 and 9).
**III. Discussion of Public Comments on Proposed Rule**
The regulations were developed working with tribal representatives. During our National Public Law 102-477 conference in Reno, Nevada held from October 30-November 1, 2007, the proposed draft regulations and their effect on Job Placement and Training were discussed. Three hundred twenty-eight individuals attended the conference. The proposed regulations were also discussed at the Annual Alaska Bureau Service Providers conference in November 2007. We received numerous comments throughout a previous informal review process for more than the past 5 years. Some comments recommended more clarity or consistency and more detail or additional language in order to better clarify the Job Placement and Training Program. The Department incorporated changes based on these comments into the proposed rule, published on April 9, 2008 (73 FR 19179).
During the public comment period we received one comment from the Co-Chair of the Public Law 102-477 (Indian Employment, Training and Related Services Demonstration Act, as amended) Tribal Work Group. Specifically she stated, “As P.L. 102-477 Tribal workgroup Co-Chair representing over 258 federally recognized tribes or consortiums * * * the consensus of the group is that the proposed rules are reasonable and acceptable. I have personally read the proposed rules and find them clear, easy to understand and well worded. I concur with the consensus of the 477 Tribal Work Group members.” This written comment agreed with the proposed draft and no corrections or revisions were recommended. The comment stated that the proposed regulations were consistent with tribal suggestions and integration of programs to facilitate tribal implementation.
Given the positive response to the proposed rule, the Department has not made any changes to the rule beyond a few editorial changes and clarifications, which include:
• Adding to the definition of “On-the-job-training (OJT)” in section 26.1 that on-the-job training activities are limited to 24 months. This is a statutory requirement;
• Replacing “client” with “applicant” or “person” in a few instances where those terms are more appropriate;
• In section 26.5, clarifying that eligible applicants may live in an agreed contract service area;
• In section 26.23, clarifying that only one comprehensive Individual Self-Sufficiency Plan (ISP) will be developed for each applicant;
• In section 26.32, clarifying that an application may include an applicant assessment or other documents required by the servicing agency;
• In section 26.35, deleting “public” as a modifier to “transportation” to clarify that support services may include both public and private transportation; and
• In section 26.38, adding a sentence to clarify that if the servicing agency is a tribal contractor, the appeal may be filed with the tribal contractor under their established procedure, rather than with the service provider.
**IV. Procedural Requirements**
**A. Civil Justice Reform (Executive Order 12988)**
The Department has certified to the Office of Management and Budget (OMB) that this proposed rule meets the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
**B. Regulatory Planning and Review (Executive Order 12866)**
This final rule is not a significant regulatory action and the OMB has not reviewed this rule under Executive Order 12866.
(a) This final rule will not have an effect of $100 million or more on the economy. Further, this rule will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule combines two programs into one, reflecting a change to the Department's budget, which consolidated funding for the two programs into one line item. The purpose of the program is to assist eligible applicants to obtain job skills and to find and retain a job leading to self-sufficiency. Any effect on productivity, competition, jobs, and tribal governments or communities will be positive.
(b) This final rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This rule encourages coordination with other agency programs offering job training and placement assistance. For example, the rule states that the Bureau will consider other available resources, including those offered by other agencies, in determining financial need; allows the Bureau or tribal service provider to enter into agreements with appropriate Federal, State, or local government agencies, among other organizations, to provide facilities and services required for vocational training programs; and encourages partnering with similar programs and resources that may be offered by other agencies or organizations.
(c) This final rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule does not alter any budgetary effects or the rights or obligations of recipients to job placement and training services; the rule merely consolidates programs to reflect consolidation into one budget line item.
(d) This final rule does not raise novel legal or policy issues. The Bureau and tribal service providers have been providing the types of services covered by this now consolidated rule and the legal and policy basis for providing these services has been well established.
**C. Regulatory Flexibility Act**
This final rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). This rule offers job training and placement assistance to certain eligible individuals and will not affect small entities.
**D. Takings (Executive Order 12630)**
The Department has determined that this final rule does not have significant “takings” implications. The final rule does not pertain to “taking” of private property interests, nor does it affect private property.
**E. Federalism (Executive Order 13132)**
The Department has determined that this final rule does not have significant federalism effects because it pertains solely to Federal-tribal relations and will not interfere with the roles, rights and responsibilities of States. Therefore, a Federalism Assessment is not required.
**F. National Environmental Policy Act**
The Department has determined that this final rule does not constitute a major Federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969.
**G. Unfunded Mandates Act of 1995**
This final rule imposes no unfunded mandates on any governmental or private entity and is in compliance with the provisions of the Unfunded Mandates Act of 1995. Additionally, this rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. The rule addresses a program that offers assistance to eligible individuals to obtain job skills and to find and retain a job leading to self-sufficiency; it does not require any action or service by any governmental or private entity. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 *et seq.* ) is not required.
**H. Paperwork Reduction Act of 1995**
The information collection requirements contained in this final rule have been renewed by the Office of Management and Budget (OMB) under 44 U.S.C. 3504(h). The OMB control number is 1076-0062. The authorization expires on March 31, 2011.
**I. Consultation With Indian Tribes (Executive Order 13175)**
In accordance with Executive Order 13175, we have identified potential effects on federally recognized Indian tribes that will result from this rule. This final rule will affect those tribes that provide job placement and training programs by consolidating the two CFR parts that had previously governed the assistance they provide. During the week of October 27, 2007, we met with tribes at the National Public Law 102-477 Conference to discuss changes in the regulations. We also discussed proposed changes during the Annual Alaska Providers Service Conference in November 2007. The proposed regulations have been a topic of discussion with tribes for more than the past 5 years. The proposed changes were discussed at the annual Adult Vocational Training Conference sponsored by Sinte Gleska College for several years. We have considered tribal views in the proposed rule as they were being developed for over 5 years with intensive tribal consultation and consequently the final rule had only one public comment and that comment was favorable.
**J. Small Business Regulatory Enforcement Fairness Act (SBREFA)**
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more. This rule combines two programs into one, reflecting a change to the Department's budget, which consolidated funding for the two programs into one line item.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This rule will not affect costs or prices because it relates only to a job training and assistance program for eligible individuals.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The purpose of this rule's program is to assist eligible clients to obtain job skills and to find and retain a job leading to self-sufficiency. Any effect on competition, employment, investment, productivity, innovation or the ability of U.S.-based enterprises to compete with foreign-based enterprises will be positive, by providing more individuals with needed skills and job experience.
**K. Information Quality Act**
In developing this final rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
**L. Effects on the Energy Supply (E.O. 13211)**
This final rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
**V. Drafting Information**
The primary author of this document is Lynn Forcia, Chief, Division of Workforce Development.
**List of Subjects in 25 CFR Parts 26 and 27**
Employment, Grant programs—Indians, Indians—Adult education, Indians—Vocational education, Manpower training programs—Occupational training.
Dated: June 11, 2009.
Larry Echo Hawk,
Assistant Secretary—Indian Affairs.
**25 CFR Part 27**
For the reasons given in the preamble under the authority of 5 U.S.C. 301 and sections 463 and 465 of the Revised Statutes (25 U.S.C. 2 and 9), the Department of the Interior amends part 26 and part 27 of title 25, chapter I of the Code of Federal Regulations as set forth below.
**Title 25—Indians**
**CHAPTER I—BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR**
1. Revise part 26 to read as follows:
**PART 26—JOB PLACEMENT AND TRAINING PROGRAM**
**Subpart A—General Applicability**
26.1
26.2
26.3
26.4
26.5
26.6
26.7
26.8
26.9
26.10
26.11
26.12
26.13
26.14
26.15
26.16
26.17
26.18
26.19
26.20
26.21
26.22
26.23
**Subpart B—Job Placement Services**
26.24
26.25
26.26
26.27
26.28
**Subpart C—Training Services**
26.29
26.30
26.31
26.32
26.33
26.34
26.35
26.36
26.37
**Subpart D—Appeal by an Applicant**
26.38
**Authority:**
25 U.S.C. 13; Sec. 1, Public Law 84-959, 70 Stat. 966 as amended by Public Law 88-230, 77 Stat. 471 (25 U.S.C. 309)
**Subpart A—General Applicability**
§ 26.1
As used in this part:
*Bureau* means the Bureau of Indian Affairs (BIA).
*Department* means the Department of the Interior.
*Gainful Employment* means work resulting in self-sufficiency.
*Indian* means any person who is a member of a federally recognized tribe, including Alaska Natives.
*Individual Self-Sufficiency Plan (ISP)* means a written plan designed to meet the goal of employment through specific actions that meet the needs of the individual. The plan is jointly developed and is signed by both the applicant and the servicing office. The ISP addresses the client's barriers to employment and a plan of action to address barriers.
*Must* means a mandatory act or requirement.
*On or Near Reservation* means those areas or communities adjacent or contiguous to reservations, or service areas where Job Training and Placement programs are provided upon approval of the Assistant Secretary-Indian Affairs or his designated representative. For purposes of this program and services, Alaska is included in this definition.
*On-the-Job-Training (OJT)* means a written agreement for an employer to provide training to a participant who engages in productive work that provides knowledge or skills essential to the full and adequate performance of the job. The employer receives reimbursement from the Job Training Program for the wage rate of the participant. OJT may be used to meet the goal(s) in the participant's ISP, as long as it does not exceed 24 months.
*Permanent Employment* means a year-round job or one that re-occurs seasonally, lasting at least 90 days per work season.
*Service Area* means a location agreed to by the tribe with the Bureau to provide Job Training and Placement Services.
*Servicing Office* means the Bureau office or the office of the tribal service provider that administers the Job Training and Placement Program.
*Tribal Governing Body* means the recognized entity empowered to exercise governmental authority over a federally recognized tribe.
*Tribal Service Provider* means a tribe or tribal organization that administers the Job Training and Placement Program pursuant to Public Law 93-638 or Public Law 102-477.
*Tribe* means any tribal entity listed in the *Federal Register* notice that the Secretary of the Interior publishes under Public Law 103-454, 108 Stat. 4791.
*Underemployed* means an individual who is working but whose income is insufficient to meet essential needs.
*Unemployed* means an individual who is not currently working or employed.
*Unmet need* means the difference between available resources and the cost associated with finding gainful employment.
*Vocational Training* means technical training that leads to permanent and gainful employment.
*We* , *us* , or *our* means the Secretary of the Interior, or an official in the Office of the Assistant Secretary—Indian Affairs, or an official in the Bureau of Indian Affairs to whom the Secretary has delegated authority.
§ 26.2
The information collection requirements contained in this part have been approved by the Office of Management and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned OMB clearance number 1076-0062. Response is required to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to a collection of information unless the form or regulation requesting the information has a currently valid OMB Control Number.
§ 26.3
The purpose of the Job Placement and Training Program is to assist eligible applicants to obtain job skills and to find and retain a job leading to self-sufficiency.
§ 26.4
The Job Placement and Training Program is administered by the Bureau of Indian Affairs or a tribal service provider. Tribes are encouraged to provide services directly to Indians by either entering into a Public Law 93-638 contract with the Bureau or a compact with the Office of Self—Governance. Tribes may also consolidate Job Placement and Training Program funds in accordance with the provisions of the Indian Employment, Training, and Related Services Demonstration Act of 1992, Public Law 102-477.
§ 26.5
You may apply for assistance for employment or training if all of the following criteria are met:
(a) You meet the definition of Indian in § 26.1; and
(b) You are residing on or near an Indian reservation or in a service area, or in the agreed contract service area; and
(c) You are unemployed or underemployed or need and can benefit from employment assistance as determined by your servicing office; and
(d) You complete an ISP.
§ 26.6
Financial assistance is only available to persons:
(a) Approved for training that will lead to permanent, gainful and meaningful employment; or
(b) Who have obtained a job and need financial assistance to retain the job, as determined by the servicing office.
§ 26.7
You must show that current income and other available resources are not sufficient to meet employment or training goals.
§ 26.8
You may apply for Job Placement and Training assistance at the servicing office nearest to your current residence.
§ 26.9
(a) You should contact the BIA office or the tribal service provider which is nearest to your current residence to get an application form;
(b) You must complete the application process as established by your servicing office; and
(c) You must complete and sign a comprehensive ISP (or an individual development plan (IDP) or employment development plan (EDP), which are synonymous with an ISP).
§ 26.10
(a) Your servicing office will notify you in writing within 30 calendar days once it receives a completed job training application request; or
(b) Your servicing office will notify you within 5 business days once it has received a completed Job Placement application and written job offer.
§ 26.11
Services provided may include funding for employment, training or supplemental assistance that supports job placement or training activities (see subpart B of this part for Job Placement or subpart C of this part for Training Services).
§ 26.12
The Bureau or a tribal service provider may enter into contracts or agreements to provide facilities and services required for vocational training programs with:
(a) Indian tribal governing bodies or, when approved by the tribal service provider, other provider of meaningful training programs not currently operated by the tribe;
(b) Appropriate Federal, State, or local government agencies;
(c) Public or private schools with a recognized reputation in vocational education and successfully obtaining employment for graduates;
(d) Education firms that operate residential training centers; and
(e) Corporations and associations or small business establishments with apprenticeship or on-the-job training (OJT) programs leading to skilled employment.
§ 26.13
(a) Your training at any approved institution, apprenticeship, and/or OJT must not exceed 24 months of full-time actual training hours.
(b) Registered nurse training must not exceed 36 months of full actual training hours.
(c) You may receive other financial assistance under this program determined by your ISP that you have developed with your tribal service provider.
§ 26.14
A service provider is an administrative unit of a BIA Regional Office, a BIA Agency Office, a BIA Field Office, a Tribal contracted office, or Alaska Native federally recognized tribe, or a tribal organization, that provides grants to help offset the cost of vocational or technical training (at approved places), or immediate job placement services. To the extent resources will allow, other kinds of support service may also be available.
§ 26.15
You are eligible for services if:
(a) You meet the definition of an American Indian or Alaska Native; and
(b) Either:
(1) You can demonstrate an unmet need and show a need for job training or placement services in order to become gainfully and meaningfully employed; or
(2) You are skilled, but need financial assistance to get to a job, and you show an aptitude and potential to benefit from services.
§ 26.16
(a) The amount of financial assistance you receive depends on your unmet needs. If applicable, you should apply for:
(1) A Pell Grant if your training institution offers this grant; and
(2) Other education grants or loans for which you may qualify.
(b) The Bureau or tribal service provider will award financial assistance up to the level of your unmet need to the extent resources are available. It is possible that the combination of available financial assistance will not equal your financial need.
§ 26.17
Yes, more than one family member can be assisted, providing that each applicant is eligible.
§ 26.18
The BIA or tribal service provider may provide, but is not limited to, the following supportive services:
(a) Assistance in completing an application and the provision of supporting documents;
(b) A description of the Job Placement and Training Program and related services;
(c) An assessment of eligibility;
(d) An assessment of need for employment services (or a combination of training and employment services);
(e) The creation of an ISP (which may include training and other support services);
(f) Counseling services that address cultural differences and strengthen probability of client success;
(g) Referral to other appropriate services;
(h) Youth work experience;
(i) Tools for employment;
(j) Initial union dues;
(k) Transportation of household effects;
(l) Security and safety deposits;
(m) Items to improve personal appearance such as professional work clothing;
(n) If required, kitchen and other household effects including bedding and appliances; and
(o) Childcare.
§ 26.19
Yes, the Job Placement and Training Program clients are required to seek other funding, including the use of personal resources as a condition of their ISP.
§ 26.20
Yes, grants are awarded for a specific purpose as described in the applicant's ISP. If the funds cannot be spent according to the ISP, the unused portion must be returned to the service provider's job placement and training budget.
§ 26.21
Yes, combining this program with other programs is encouraged, to the extent that laws governing program services permit partnering with similar programs and resources.
§ 26.22
Yes, Indian tribes may integrate Job Placement and Training Program funds into their Public Law 102-477 Plan.
§ 26.23
(a) An ISP is a document that:
(1) Spells out the details necessary for a person to assume a meaningful job (usually within a reasonable period of time);
(2) Supplements the application process and includes needed finances, special clothing, transportation, and support services necessary for employment;
(3) Identifies all financial resources and defines the employment or training objective and activities planned to reach the objective; and
(4) Outlines how the applicant will participate in job placement, where resources will allow.
(b) The employer's job information and offer should be attached to the ISP, which becomes a part of the application (and supporting documents).
(c) The ISP must indicate that the services received will meet the individual's and tribal goals.
(d) Only one comprehensive ISP can be in effect for each applicant at one time. The comprehensive ISP should be coordinated and integrated with other programs offered by the servicing agency.
**Subpart B—Job Placement Services**
§ 26.24
The Job Placement Program assists Indian people who have job skills to obtain and retain gainful employment leading to self-sufficiency.
§ 26.25
To be complete, a Job Placement Program application must contain all of the items required by this section.
(a) An application signed by the applicant and servicing office representative.
(b) An ISP, including a list of goods and services needed to get the applicant to the job, signed by the applicant and servicing representative.
(c) An accepted official document that shows the formal relationship between the applicant and a federally recognized tribe or a document that shows an applicant's eligibility for services.
(d) A statement by the service provider that the applicant has been declared eligible for services.
(e) A financial statement that reflects the applicant's unmet need.
(f) An employer certification that the applicant has been hired. The certification must include, at a minimum:
(1) Job title;
(2) Beginning date;
(3) Beginning wage;
(4) Date first full paycheck will be issued; and
(5) Expected duration of the job.
§ 26.26
As determined by the service provider, you may receive transportation to work for a limited period, funds to finalize your job resume, and job placement assistance.
§ 26.27
Service office representatives will make the determination of what support services are necessary and to be funded. Examples of job placement support services include, but are not limited to resume preparation, interview techniques, job retention, and related living skills.
§ 26.28
As determined by the service provider, the following type of services may be available: Temporary housing, transportation to work for a limited period of time, work clothing, and childcare.
**Subpart C—Training Services**
§ 26.29
A service provider may offer career counseling, assessment, recommend training institutions that properly prepare applicants for entry into their career field, and help prepare applicants for gainful employment to the extent program funding will allow and based on applicants' established need.
§ 26.30
Yes, part-time and short-term training are allowable provided the training assists individuals to develop skills necessary to acquire gainful employment, in accordance with the ISP, and depending upon availability of resources. Part-time means no less than six credit units per semester (based on a nine-month school year).
§ 26.31
Eligibility for repeat training and other financial assistance will be determined by your tribal service provider.
§ 26.32
A request for training includes:
(a) Intake and application data;
(b) Feasible, comprehensive ISP;
(c) Tribal affiliation document;
(d) Selective Service registration;
(e) Selected place of training;
(f) Statement of financial need;
(g) Statement of eligibility; and
(h) Applicant assessment or other documents as required by the servicing agency.
§ 26.33
The need for Job Placement and Training is shown by completing an application for training that demonstrates financial need.
§ 26.34
The following types of training that lead to gainful employment may be approved:
(a) Nationally accredited vocational training;
(b) Training and non-accredited vocational courses provided by a tribe;
(c) Training programs not operated by the tribe but approved by the service provider;
(d) Apprenticeship training supervised by a State apprenticeship agency or council or by the Federal Apprenticeship Training Service that is provided by a corporation or association that has been training bona fide apprentices for at least one year or any other apprenticeship program approved by the service provider; or
(e) OJT offered by a public or private business.
§ 26.35
As determined by the service provider, training support services include, but are not limited to, stipends, transportation, and childcare.
§ 26.36
Job Placement assistance may follow training.
§ 26.37
Yes, students must maintain the minimum academic requirements and be in good standing as set forth by the training institute. If an applicant is separated from training for good cause, the applicant may be responsible for repaying any portion of misused funds.
**Subpart D—Appeal by an Applicant**
§ 26.38
If the servicing agency denies your application you may appeal under part 2 of this chapter by sending your appeal to your service provider. If your servicing agency is a tribal contractor, you should file your appeal with the tribal contractor under their established procedure. The letter informing you of the decision on your application will include information on how to appeal.
**25 CFR Part 27**
**PART 27—[Removed]**
2. Remove part 27.