Indian Business Incubators Program

AGENCY:

Office of the Assistant Secretary, Indian Affairs, Interior.

ACTION:

Proposed rule.

SUMMARY:

The Office of Indian Energy and Economic Development (IEED) proposes a new regulation to implement the recently enacted Native American Business Incubators Program Act. The Indian Business Incubators Program (IBIP), also known as the Native American Business Incubators Program, is a program in which IEED provides competitive grants to eligible applicants to establish and operate business incubators that serve Tribal reservation communities. These regulations establish who is eligible for the program, how to apply, how IEED will evaluate applications and make awards, and how IEED will administer the program.

DATES:

Please submit your comments by June 14, 2021. Tribal consultation sessions to discuss this rule will be held on May 12 and 13, 2021, at 1 p.m. ET. Please register in advance using the links provided in the SUPPLEMENTARY INFORMATION section of this document.

ADDRESSES:

You may submit comments, identified by the number 1076-AF63, by any of the following methods:

• Federal rulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Email: consultation@bia.gov. Include the number 1076-AF63 in the subject line of the message.
• Mail or courier: Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, Office of the Assistant Secretary—Indian Affairs, U.S. Department of the Interior, 1849 C Street NW, Mail Stop 4660, Washington, DC 20240.

We cannot ensure that comments received after the close of the comment period (see DATES) will be included in the docket for this rulemaking and considered. Comments sent to an address other than those listed above will not be included in the docket for this rulemaking. All comments received will be posted without change to http://www.regulations.gov,, including any personal information provided.

Comments on the Paperwork Reduction Act information collections contained in this rule are separate from comments on the substance of the rule. Send your comments and suggestions on the information collection requirements to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or OIRA_Submission@omb.eop.gov (email). Please provide a copy of your comments to consultation@bia.gov.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, telephone (202) 273-4680, elizabeth.appel@bia.gov.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

II. Need for This Proposed Rulemaking

III. Overview of Proposed Rule

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement and Fairness Act

D. Unfunded Mandates Reform Act of 1995

E. Takings (E.O. 12630)

F. Federalism (E.O. 13132)

G. Civil Justice Reform (E.O. 12988)

H. Paperwork Reduction Act

I. National Environmental Policy Act (NEPA)

J. Consultation With Indian Tribes (E.O. 13175)

K. Energy Effects (E.O. 13211)

L. Clarity of This Regulation

M. Public Availability of Comments

I. Statutory Authority

IEED is proposing this rule under the authority of the Native American Business Incubators Program Act, Public Law 116-174.

II. Need for This Proposed Rulemaking

On October 20, 2020, Congress enacted the Native American Business Incubators Program Act, Public Law 116-174, which will be codified at 25 U.S.C. 5801 et seq. In the Act, Congress establishes the Native American Business Incubators Program. Congress found that, in addition to the challenges all entrepreneurs face when transforming ideas into profitable business enterprises, entrepreneurs face an additional set of challenges that requires special knowledge when they want to provide products and services in Tribal reservation communities. Congress further found that the business incubator model is suited to accelerating entrepreneurship in Tribal reservation communities, promoting collaboration to address challenges and providing individually tailored services to overcome the obstacles that are unique to each participating business, ultimately stimulating economic development in reservation communities. Business incubators accelerate the creation and development of businesses by offering a range of services to business owners such as: mentorships, networking, technical assistance, and access to investors. In accordance with the Act's requirement for promulgation of regulations within 180 days of the Act's enactment (i.e., by April 18, 2021), IEED is publishing today's proposed rule for notice and comment.

III. Overview of Proposed Rule

This proposed rule would establish the IBIP, in accordance with the Native American Business Incubators Program Act. Through the IBIP, IEED will provide competitive grants to eligible applicants to establish and operate business incubators that serve entrepreneurs (start-up and early stage businesses) who will provide products or services to Tribal reservation communities. A business incubator is an organization that assists entrepreneurs in becoming viable businesses by providing advice and services to entrepreneurs to navigate obstacles in transforming their innovative ideas into operational businesses. Examples of services that a business incubator may provide are workspace and facilities, advice on how to access capital, business education, counseling, and networking and mentorship opportunities. Indian Affairs does not currently have any regulations in place that provide for a grant program for Indian business incubators. These regulations are intended to provide the framework for operation of the grant program so that there is certainty as to who is eligible for a grant, how eligible applicants can apply for a grant, how IEED will evaluate, award, and administer the grants, and what terms and conditions will apply to the grants. The ultimate goal of providing this regulatory framework is to enable IEED to provide grants under these regulations that will stimulate economic development in reservation communities. IEED welcomes input on any proposed regulatory provision that may undermine this goal.

The proposed rule consists of six subparts, each of which is described below.

• Subpart A—General Provisions and Eligibility: Defines terms defined in the statute consistent with the statutory definitions, replacing citations with restatements of the provisions cited where appropriate, and adds a new term for “IBIP” in lieu of “Native American Business Incubator Program (NABIP)” to avoid confusion because the acronym “NABIP” is similar to other grant programs. This subpart also describes who is eligible to receive an IBIP grant, to include the following entities that meet certain additional requirements set out in § 1187.3:

○ Tribes;

○ Tribal colleges and universities;

○ Institutions of higher education; and

○ Tribal or private nonprofit organizations that provide business and financial technical assistance.

• Subpart B—Applying for a Grant: Describes how an eligible applicant applies for a grant, adding the specificity that applications must be submitted through www.grants.gov. This subpart also includes the statutory requirements for what must be included in an application and written site proposal, and how to submit a joint application. The regulations add that joint applications must identify which of the entities submitting the joint application will be the lead contact for the purposes of grant management.
• Subpart C—Evaluation of Grant Applications: Describes the criteria IEED will use to evaluate each IBIP grant application, adding the specific time period of three months to the statutory requirement that the applicant must commence services within a minimum period of time to be determined by the Secretary. This subpart also adds a new criterion to the statutory criteria for evaluation: The extent to which a grant award will enable an entity that is already providing business incubation services to appreciably enhance those services. IEED added this criterion in order to ensure that the grant is funding new incubation services, such that there is a return for the investment made in the incubator, rather than merely paying existing incubators for services they would have otherwise provided.
• Subpart D—Grant Awards: Describes how IEED will disburse grant funds to awardees according to the statute. This subpart also includes the statutory prohibition on awarding an IBIP grant that duplicates other Federal funding, but adds a clarification that duplicative funding means any funding from other Federal grants that would overlap with the IBIP grant for the same activities described in the applicant's IBIP proposal.
• Subpart E—Grant Term and Conditions: Establishes an initial grant term of three years, with the opportunity to renew for one additional three-year term if certain conditions are met, in accordance with the statute. This subpart also lists the purposes for which awardees may use the grant funds, requires awardees to provide non-Federal contributions in an amount at least 25 percent of the grant unless the conditions for waiver of that requirement are met, lists the minimum requirements awardees must meet in providing incubation services, and requires the awardee to submit a report at the end of the grant year that provides, among other things, a detailed breakdown of the Native businesses and Native entrepreneurs the incubator helped establish or serve. These items are all statutory but are included in the regulation to assist readers in finding all relevant IBIP grant information in one location.
• Subpart F—IEED Grant Administration: Provides that IEED will conduct an annual evaluation of each IBIP awardee's success, facilitate relationships between awardees and educational institutions serving Native American communities, and collaborate with other Federal agencies that administer business and entrepreneurial programs. These items are also all statutory but are included in the regulation to assist readers in finding all relevant IBIP grant information in one location.

IEED seeks comment, particularly from Tribes and potentially eligible IBIP applicants, on any changes to the regulation within the bounds of the statute that could be incorporated to help ensure the success of this newly established program.

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866, 13563)

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

B. The Regulatory Flexibility Act

The Department of the Interior certifies that this proposed rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule establishes a program to provide grants for business incubators, some of which may be small entities, but the $5 million in total annual appropriations is not expected to reach the threshold of having a significant economic effect on a substantial number of small entities.

C. Small Business Regulatory Enforcement Fairness Act of 1996

This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. Because this proposed rule establishes a program supported by $5 million in annual appropriations this rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(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.

D. Unfunded Mandates Reform Act of 1995

This proposed rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The proposed rule does not have a monetarily significant or unique effect on State, local, or Tribal governments or the private sector. This proposed rule would establish a program to provide grants to certain business incubators that will serve Tribal communities. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

This proposed rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630 because this proposed rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.

F. Federalism (E.O. 13132)

Under the criteria in section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

G. Civil Justice Reform (E.O. 12988)

This proposed rule complies with the requirements 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.

H. Consultation With Indian Tribes (E.O. 13175)

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has substantial direct effects on federally recognized Indian Tribes because the rule requires early tribal involvement in the design of a process that will have significant impact on one or more recognized tribes.

Given the statutory deadline of April 2021 for promulgating a regulation, IEED did not have sufficient time to formally consult on the development of this proposed rule, but has scheduled the following Tribal consultation sessions by webinar to discuss this proposed rule:

• May 12, 2021, 1 p.m.-3 p.m. ET—please register for this session at: https://doilearn2.webex.com/doilearn2/onstage/g.php?MTID=e77ad54c5178e4fcff380d118dcc83c2f.
• May 13, 2021, 1 p.m.-3 p.m. ET—please register for this session at: https://doilearn2.webex.com/doilearn2/onstage/g.php?MTID=e1e488228146 c27c782cd83cb83b9478b.

I. Paperwork Reduction Act

This proposed rule contains new information collections. All information collections require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The Department is seeking approval of a new information collection, as follows.

Brief Description of Collection: This information collection includes items that an applicant must include in an application for an Indian Business Incubator Program (IBIP) grant and that IBIP awardees must include in the annual report. Applicant contents include such items as a description of the reservation communities the incubator will serve, a three-year plan regarding the services to be offered to participating entrepreneurs, among other items, information regarding applicant's experience in conducting assistance programs, and a site description of the location at which the applicant will provide work space to participants, among other items. The annual report includes a detailed breakdown of the entrepreneurs the incubator has served for the year covered by the report.

Title: Indian Business Incubator Program (IBIP).

OMB Control Number: 1076-NEW.

Form Number: None.

Type of Review: New collection.

Respondents/Affected Public: Individuals, Private Sector, Government.

Total Estimated Number of Annual Respondents: 50.

Total Estimated Number of Annual Responses: 100.

Estimated Completion Time per Response: Ranges from 5 to 35 hours.

Total Estimated Number of Annual Burden Hours: 2,000 hours.

Respondents' Obligation: Required to obtain a benefit.

Frequency of Response: Occasionally.

Total Estimated Annual Non-Hour Burden Cost: $0.

As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function. Please provide a copy of your comments to consultation@bia.gov. Please reference OMB Control Number 1076-NEW in the subject line of your comments.

J. National Environmental Policy Act

This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation. (For further information see 43 CFR 46.210(i)). We have also determined that this proposed rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

This proposed rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

L. Clarity of This Regulation

We are required by Executive Orders 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each proposed rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and,

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc.

M. Public Availability of Comments

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

List of Subjects in 25 CFR Part 1187

• Indians—business and finance
• Loan programs—business
• Loan programs—Indians
• Reporting and recordkeeping requirements

For the reasons given in the preamble, the Department of the Interior proposes to amend Chapter VI of Title 25 of the Code of Federal Regulations by adding part 1187 to read as follows:

PART 1187—INDIAN BUSINESS INCUBATORS PROGRAM

Authority: 25 U.S.C. 2, 9; Pub. L. 116-174.

Subpart A—General Provisions and Eligibility

Subpart B—Applying for a Grant

Subpart C—Evaluation and Award of Grant Applications

Subpart D—Grant Awards

Subpart E—Grant Term and Conditions

Subpart F—IEED Grant Administration