[Title 25 CFR VI]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter Vi - OFFICE OF THE ASSISTANT SECRETARY, INDIAN AFFAIRS,]
[From the U.S. Government Printing Office]


25INDIANS12004-04-012004-04-01falseOFFICE OF THE ASSISTANT SECRETARY, INDIAN AFFAIRS,VICHAPTER VIINDIANS
    CHAPTER VI-- OFFICE OF THE ASSISTANT SECRETARY, INDIAN AFFAIRS, 
                       DEPARTMENT OF THE INTERIOR




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Part                                                                Page
1000            Annual funding agreements under the Tribal 
                    Self-Government Act amendments to the 
                    Indian Self-Determination and Education 
                    Act.....................................        1047
1001            Self-Governance Program.....................        1103

[[Page 1047]]



PART 1000_ANNUAL FUNDING AGREEMENTS UNDER THE TRIBAL SELF-GOVERNMENT ACT 
AMENDMENTS TO THE INDIAN SELF-DETERMINATION AND EDUCATION ACT--Table of Contents




                      Subpart A_General Provisions

Sec.
1000.1 Authority.
1000.2 Definitions.
1000.3 Purpose and scope.
1000.4 Policy statement.

  Subpart B_Selection of Additional Tribes for Participation in Tribal 
                             Self-Governance

                         Purpose and Definitions

1000.10 What is the purpose of this subpart?
1000.11 What is the ``applicant pool''?
1000.12 What is a ``signatory''?
1000.13 What is a ``nonsignatory Tribe''?

                               Eligibility

1000.14 Who is eligible to participate in Tribal self-governance?
1000.15 How many additional Tribes/Consortia may participate in self-
          governance per year?
1000.16 What criteria must a Tribe/Consortium satisfy to be eligible for 
          admission to the ``applicant pool''?
1000.17 What documents must a Tribe/Consortium submit to OSG to apply 
          for admission to the applicant pool?
1000.18 May a Consortium member Tribe withdraw from the Consortium and 
          become a member of the applicant pool?
1000.19 What is done during the ``planning phase''?
1000.20 What is required in a planning report?
1000.21 When does a Tribe/Consortium have a ``material audit 
          exception''?
1000.22 What are the consequences of having a material audit exception?

                    Admission Into the Applicant Pool

1000.23 How is a Tribe/Consortium admitted to the applicant pool?
1000.24 When does OSG accept applications to become a member of the 
          applicant pool?
1000.25 What are the deadlines for a Tribe/Consortium in the applicant 
          pool to negotiate a compact and annual funding agreement 
          (AFA)?
1000.26 Under what circumstances will a Tribe/Consortium be removed from 
          the applicant pool?
1000.27 How does the Director select which Tribes in the applicant pool 
          become self-governance Tribes?
1000.28 What happens if an application is not complete?
1000.29 What happens if a Tribe/Consortium is selected from the 
          applicant pool but does not execute a compact and an AFA 
          during the calendar year?
1000.30 May a Tribe/Consortium be selected to negotiate an AFA under 
          section 403(b)(2) without having or negotiating an AFA under 
          section 403(b)(1)?
1000.31 May a Tribe/Consortium be selected to negotiate an AFA under 
          section 403(c) without negotiating an AFA under section 
          403(b)(1) and/or section 403(b)(2)?

          Withdrawal From a Consortium Annual Funding Agreement

1000.32 What happens when a Tribe wishes to withdraw from a Consortium 
          annual funding agreement?
1000.33 What amount of funding is to be removed from the Consortium's 
          AFA for the withdrawing Tribe?
1000.34 What happens if there is a dispute between the Consortium and 
          the withdrawing Tribe?
1000.35 When a Tribe withdraws from a Consortium, is the Secretary 
          required to award to the withdrawing Tribe a portion of funds 
          associated with a construction project if the withdrawing 
          Tribe so requests?

        Subpart C_Section 402(d) Planning and Negotiation Grants

                       Purpose and Types of Grants

1000.40 What is the purpose of this subpart?
1000.41 What types of grants are available?

               Availability, Amount, and Number of Grants

1000.42 Will grants always be made available to meet the planning phase 
          requirement as described in section 402(d) of the Act?
1000.43 May a Tribe/Consortium use its own resources to meet its self-
          governance planning and negotiation expenses?
1000.44 What happens if there are insufficient funds to meet the Tribal 
          requests for planning/negotiation grants in any given year?
1000.45 How many grants will the Department make each year and what 
          funding will be available?

                           Selection Criteria

1000.46 Which Tribes/Consortia may be selected to receive a negotiation 
          grant?
1000.47 What must a Tribe/Consortium do to receive a negotiation grant?
1000.48 What must a Tribe do if it does not wish to receive a 
          negotiation grant?

[[Page 1048]]

                     Advance Planning Grant Funding

1000.49 Who can apply for an advance planning grant?
1000.50 What must a Tribe/Consortium seeking a planning grant submit in 
          order to meet the planning phase requirements?
1000.51 How will Tribes/Consortia know when and how to apply for 
          planning grants?
1000.52 What criteria will the Director use to award advance planning 
          grants?
1000.53 Can Tribes/Consortia that receive advance planning grants also 
          apply for a negotiation grant?
1000.54 How will a Tribe/Consortium know whether or not it has been 
          selected to receive an advance planning grant?
1000.55 Can a Tribe/Consortium appeal within DOI the Director's decision 
          not to award a grant under this subpart?

   Subpart D_Other Financial Assistance for Planning and Negotiations 
                       Grants for Non-BIA Programs

                         Purpose and Eligibility

1000.60 What is the purpose of this subpart?
1000.61 Are other funds available to self-governance Tribes/Consortia 
          for planning and negotiating with non-BIA bureaus?

                   Eligibility and Application Process

1000.62 Who can apply to OSG for grants to plan and negotiate non-BIA 
          programs?
1000.63 Under what circumstances may planning and negotiation grants be 
          awarded to Tribes/Consortia?
1000.64 How does the Tribe/Consortium, know when and how to apply to OSG 
          for a planning and negotiation grant?
1000.65 What kinds of activities do planning and negotiation grants 
          support?
1000.66 What must be included in the application?
1000.67 How will the Director award planning and negotiation grants?
1000.68 May non-BIA bureaus provide technical assistance to a Tribe/
          Consortium in drafting its planning grant application?
1000.69 How can a Tribe/Consortium obtain comments or selection 
          documents received or utilized after OSG has made a decision 
          on a planning grant application?
1000.70 What criteria will the Director use to rank the applications and 
          how many maximum points can be awarded for each criterion?
1000.71 Can an applicant appeal a decision not to award a grant?
1000.72 Will OSG notify Tribes/Consortia and affected non-BIA bureaus of 
          the results of the selection process?
1000.73 Once a Tribe/Consortium has been awarded a grant, may the Tribe/
          Consortium obtain information from a non-BIA bureau?

    Subpart E_Annual Funding Agreements for Bureau of Indian Affairs 
                                Programs

1000.80 What is the purpose of this subpart?
1000.81 What is an annual funding agreement (AFA)?

             Contents and Scope of Annual Funding Agreements

1000.82 What types of provisions must be included in a BIA AFA?
1000.83 Can additional provisions be included in an AFA?
1000.84 Does a Tribe/Consortium have the right to include provisions of 
          Title I of Pub. L. 93-638 in an AFA?
1000.85 Can a Tribe/Consortium negotiate an AFA with a term that exceeds 
          one year?

           Determining What Programs May Be Included in an AFA

1000.86 What types of programs may be included in an AFA?
1000.87 How does the AFA specify the services provided, functions 
          performed, and responsibilities assumed by the Tribe/
          Consortium and those retained by the Secretary?
1000.88 Do Tribes/Consortia need Secretarial approval to redesign BIA 
          programs that the Tribe/Consortium administers under an AFA?
1000.89 Can the terms and conditions in an AFA be amended during the 
          year it is in effect?
1000.90 What happens if an AFA expires before the effective date of the 
          successor AFA?

                         Determining AFA Amounts

1000.91 What funds must be transferred to a Tribe/Consortium under an 
          AFA?
1000.92 What funds may not be included in an AFA?
1000.93 May the Secretary place any requirements on programs and funds 
          that are otherwise available to Tribes/Consortia or Indians 
          for which appropriations are made to agencies other than DOI?
1000.94 What are BIA residual funds?
1000.95 How is BIA's residual determined?
1000.96 May a Tribe/Consortium continue to negotiate an AFA pending an 
          appeal of residual functions and amounts?
1000.97 What is a Tribal share?
1000.98 How does BIA determine a Tribe's/Consortium's share of funds to 
          be included in an AFA?
1000.99 Can a Tribe/Consortium negotiate a Tribal share for programs 
          outside its region/agency?
1000.100 May a Tribe/Consortium obtain funding that is distributed on a 
          discretionary or competitive basis?

[[Page 1049]]

1000.101 Are all funds identified as Tribal shares always paid to the 
          Tribe/Consortium under an AFA?
1000.102 How are savings that result from downsizing allocated?
1000.103 Do Tribes/Consortia need Secretarial approval to reallocate 
          funds between programs that the Tribe/Consortium administers 
          under the AFA?
1000.104 Can funding amounts negotiated in an AFA be adjusted during the 
          year it is in effect?

                Establishing Self-Governance Base Budgets

1000.105 What are self-governance base budgets?
1000.106 Once a Tribe/Consortium establishes a base budget, are funding 
          amounts renegotiated each year?
1000.107 Must a Tribe/Consortium with a base budget or base budget-
          eligible program amounts negotiated before January 16, 2001 
          negotiate new Tribal shares and residual amounts?
1000.108 How are self-governance base budgets established?
1000.109 How are self-governance base budgets adjusted?

Subpart F_Non-BIA Annual Self-Governance Compacts and Funding Agreements

                                 Purpose

1000.120 What is the purpose of this subpart?
1000.121 What is an annual funding agreement for a non-BIA program?

                               Eligibility

1000.122 What non-BIA programs are eligible for inclusion in an AFA?
1000.123 Are there non-BIA programs for which the Secretary must 
          negotiate for inclusion in an AFA subject to such terms as the 
          parties may negotiate?
1000.124 What programs are included under section 403(b)(2) of the Act?
1000.125 What programs are included under section 403(c)?
1000.126 What does ``special geographic, historical or cultural'' mean?
1000.127 Under section 403(b)(2), when must programs be awarded non-
          competitively?
1000.128 Is there a contracting preference for programs of special 
          geographic, historical, or cultural significance?
1000.129 Are there any programs that may not be included in an AFA?
1000.130 Does a Tribe/Consortium need to be identified in an authorizing 
          statute in order for a program or element of a program to be 
          included in a non-BIA AFA?
1000.131 Will Tribes/Consortia participate in the Secretary's 
          determination of what is to be included on the annual list of 
          available programs?
1000.132 How will the Secretary consult with Tribes/Consortia in 
          developing the list of available programs?
1000.133 What else is on the list in addition to eligible programs?
1000.134 May a bureau negotiate with a Tribe/Consortium for programs not 
          specifically included on the annual section 405(c) list?
1000.135 How will a bureau negotiate an annual funding agreement for a 
          program of special geographic, historical, or cultural 
          significance to more than one Tribe?
1000.136 When will this determination be made?

                                 Funding

1000.137 What funds are included in an AFA?
1000.138 How are indirect cost rates determined?
1000.139 Will the established indirect cost rate always apply to new 
          AFAs?
1000.140 How does the Secretary determine the amount of indirect 
          contract support costs?
1000.141 Is there a predetermined cap or limit on indirect cost rates or 
          a fixed formula for calculating indirect cost rates?
1000.142 Instead of the negotiated indirect cost rate, is it possible to 
          establish a fixed amount or another negotiated rate for 
          indirect costs where funds are limited?

                       Other Terms and Conditions

1000.143 May the bureaus negotiate terms to be included in an AFA for 
          non-Indian programs?

                  Reallocation, Duration and Amendments

1000.144 Can a Tribe reallocate funds for a non-BIA non-Indian program?
1000.145 Do Tribes/Consortia need Secretarial approval to reallocate 
          funds between Title-I eligible programs that the Tribe/
          Consortium administers under a non-BIA AFA?
1000.146 Can a Tribe/Consortium negotiate an AFA with a non-BIA bureau 
          for which the performance period exceeds one year?
1000.147 Can the terms and conditions in a non-BIA AFA be amended during 
          the year it is in effect?
1000.148 What happens if an AFA expires before the effective date of the 
          successor AFA?

       Subpart G_Negotiation Process for Annual Funding Agreements

                                 Purpose

1000.160 What is the purpose of this subpart?

[[Page 1050]]

                  Negotiating a Self-Governance Compact

1000.161 What is a self-governance compact?
1000.162 What is included in a self-governance compact?
1000.163 Can a Tribe negotiate other terms and conditions not contained 
          in the model compact?
1000.164 Can a Tribe/Consortium have an AFA without entering into a 
          compact?
1000.165 Are provisions in compacts negotiated before January 16, 2001, 
          effective after implementation?

            Negotiation of Initial Annual Funding Agreements

1000.166 What are the phases of the negotiation process?
1000.167 Who may initiate the information phase?
1000.168 Is it mandatory to go through the information phase before 
          initiating the negotiation phase?
1000.169 How does a Tribe/Consortium initiate the information phase?
1000.170 What is the letter of interest?
1000.171 When should a Tribe/Consortium submit a letter of interest?
1000.172 What steps does the bureau take after a letter of interest is 
          submitted by a Tribe/Consortium?
1000.173 How does a newly selected Tribe/Consortium initiate the 
          negotiation phase?
1000.174 How and when does the bureau respond to a request to negotiate?
1000.175 What is the process for conducting the negotiation phase?
1000.176 What issues must the bureau and the Tribe/Consortium address at 
          negotiation meetings?
1000.177 What happens when the AFA is signed?
1000.178 When does the AFA become effective?
1000.179 What happens if the Tribe/Consortium and bureau negotiators 
          fail to reach an agreement?

       Negotiation Process for Successor Annual Funding Agreements

1000.180 What is a successor AFA?
1000.181 How does the Tribe/Consortium initiate the negotiation of a 
          successor AFA?
1000.182 What is the process for negotiating a successor AFA?

 Subpart H_Limitation and/or Reduction of Services, Contracts, and Funds

1000.190 What is the purpose of this subpart?
1000.191 To whom does this subpart apply?
1000.192 What services, contracts, or funds are protected under section 
          406(a)?
1000.193 Who may raise the issue of limitation or reduction of services, 
          contracts, or funding?
1000.194 When must BIA raise the issue of limitation or reduction of 
          services, contracts, or funding?
1000.195 When must an affected Tribe/Consortium or Tribal organization 
          raise the issue of a limitation or reduction of services, 
          contracts, or funding for which it is eligible?
1000.196 What must be included in a finding by BIA or in a claim by or 
          an affected Tribe/Consortium or Tribal organization regarding 
          the issue of a limitation or reduction of services?
1000.197 How will BIA resolve a claim?
1000.198 How must a limitation or reduction in services, contracts, or 
          funds be remedied?

                  Subpart I_Public Consultation Process

1000.210 When does a non-BIA bureau use a public consultation process 
          related to the negotiation of an AFA?
1000.211 Will the bureau contact the Tribe/Consortium before initiating 
          public consultation process for a non-BIA AFA under 
          negotiation?
1000.212 What is the role of the Tribe/Consortium when a bureau 
          initiates a public meeting?
1000.213 What should the bureau do if it is invited to attend a meeting 
          with respect to the Tribe's/Consortium's proposed AFA?
1000.214 Will the bureau and the Tribe/Consortium share information 
          concerning inquiries about the Tribes/Consortia and the AFA?

                     Subpart J_Waiver of Regulations

1000.220 What regulations apply to self-governance Tribes?
1000.221 Can the Secretary grant a waiver of regulations to a Tribe/
          Consortium?
1000.222 How does a Tribe/Consortium obtain a waiver?
1000.223 When can a Tribe/Consortium request a waiver of a regulation?
1000.224 How can a Tribe/Consortium expedite the review of a regulation 
          waiver request?
1000.225 Are meetings or discussions mandatory?
1000.226 On what basis may the Secretary deny a waiver request?
1000.227 What happens if the Secretary denies the waiver request?
1000.228 What are examples of waivers prohibited by law?
1000.229 May a Tribe/Consortium propose a substitute for a regulation it 
          wishes to be waived?
1000.230 How is a waiver approval documented for the record?

[[Page 1051]]

1000.231 How does a Tribe/Consortium request a reconsideration of the 
          Secretary's denial of a waiver?
1000.232 When must DOI respond to a request for reconsideration?

                         Subpart K_Construction

1000.240 What construction programs included in an AFA are subject to 
          this subpart?
1000.241 Does this subpart create an agency relationship?
1000.242 What provisions relating to a construction program may be 
          included in an AFA?
1000.243 What special provisions must be included in an AFA that 
          contains a construction program?
1000.244 May the Secretary suspend construction activities under an AFA?
1000.245 May a Tribe/Consortium continue work with construction funds 
          remaining in an AFA at the end of the funding year?
1000.246 Must an AFA that contains a construction project or activity 
          incorporate provisions of Federal construction standards?
1000.247 May the Secretary require design provisions and other terms and 
          conditions for construction programs or activities included in 
          an AFA under section 403(c) of the Act?
1000.248 What is the Tribe's/Consortium's role in a construction program 
          included in an AFA?
1000.249 What is the Secretary's role in a construction program in an 
          AFA?
1000.250 How are property and funding returned if there is a 
          reassumption for substantial failure to carry out an AFA?
1000.251 What happens when a Tribe/Consortium is suspended for 
          substantial failure to carry out the terms of an AFA without 
          good cause and does not correct the failure during the 
          suspension?
1000.252 Do all provisions of other subparts apply to construction 
          portions of AFAs?
1000.253 When a Tribe withdraws from a Consortium, is the Secretary 
          required to award to the withdrawing Tribe a portion of funds 
          associated with a construction project if the withdrawing 
          Tribe so requests?
1000.254 May a Tribe/Consortium reallocate funds from a construction 
          program to a non-construction program?
1000.255 May a Tribe/Consortium reallocate funds among construction 
          programs?
1000.256 Must the Secretary retain project funds to ensure proper health 
          and safety standards in construction projects?

                      Subpart L_Federal Tort Claims

1000.270 What does this subpart cover?
1000.271 What other statutes and regulations apply to FTCA coverage?
1000.272 Do Tribes/Consortia need to be aware of areas which FTCA does 
          not cover?
1000.273 Is there a deadline for filing FTCA claims?
1000.274 How long does the Federal government have to process a FTCA 
          claim after the claim is received by the Federal agency, 
          before a lawsuit may be filed?
1000.275 Is it necessary for a self-governance AFA to include any 
          clauses about FTCA coverage?
1000.276 Does FTCA apply to a self-governance AFA if FTCA is not 
          referenced in the AFA?
1000.277 To what extent shall the Tribe/Consortium cooperate with the 
          Federal government in connection with tort claims arising out 
          of the Tribe's/Consortium's performance?
1000.278 Does this coverage extend to subcontractors of self-governance 
          AFAs?
1000.279 Is FTCA the exclusive remedy for a tort claim, including a 
          claim concerning personal injury or death, resulting from the 
          performance of a self-governance AFA?
1000.280 What employees are covered by FTCA for medical-related claims?
1000.281 Does FTCA cover employees of the Tribe/Consortium who are paid 
          by the Tribe/Consortium from funds other than those provided 
          through the self-governance AFA?
1000.282 May persons who are not Indians or Alaska Natives assert claims 
          under FTCA?
1000.283 If the Tribe/Consortium or the Tribe's/Consortium's employee 
          receives a summons and/or complaint alleging a tort covered by 
          FTCA, what should a Tribe/Consortium do?

                         Subpart M_Reassumption

1000.300 What is the purpose of this subpart?
1000.301 When may the Secretary reassume a Federal program operated by a 
          Tribe/Consortium under an AFA?
1000.302 What is ``imminent jeopardy'' to a trust asset?
1000.303 What is imminent jeopardy to natural resources?
1000.304 What is imminent jeopardy to public health and safety?
1000.305 In an imminent jeopardy situation, what must the Secretary do?
1000.306 Must the Secretary always reassume a program, upon a finding of 
          imminent jeopardy?
1000.307 What happens if the Secretary's designated representative 
          determines that the Tribe/Consortium cannot mitigate the 
          conditions within 60 days?

[[Page 1052]]

1000.308 What will the notice of reassumption include?
1000.309 How much time will a Tribe/Consortium have to respond to a 
          notice of imminent jeopardy?
1000.310 What information must the Tribe's/Consortium's response 
          contain?
1000.311 How will the Secretary reply to the Tribe's/Consortium's 
          response?
1000.312 What happens if the Secretary accepts the Tribe's/Consortium's 
          proposed measures?
1000.313 What happens if the Secretary does not accept the Tribe's/
          Consortium's proposed measures?
1000.314 What must a Tribe/Consortium do when a program is reassumed?
1000.315 When must the Tribe/Consortium return funds to the Department?
1000.316 May the Tribe/Consortium be reimbursed for actual and 
          reasonable ``wind up costs'' incurred after the effective date 
          of retrocession?
1000.317 Is a Tribe's/Consortium's general right to negotiate an AFA 
          adversely affected by a reassumption action?
1000.318 When will the Secretary return management of a reassumed 
          program?

                         Subpart N_Retrocession

1000.330 What is the purpose of this subpart?
1000.331 Is a decision by a Tribe/Consortium not to include a program in 
          a successor agreement considered a retrocession?
1000.332 Who may retrocede a program in an AFA?
1000.333 How does a Tribe/Consortium retrocede a program?
1000.334 When will the retrocession become effective?
1000.335 How will retrocession affect the Tribe's/Consortium's existing 
          and future AFAs?
1000.336 Does the Tribe/Consortium have to return funds used in the 
          operation of a retroceded program?
1000.337 Does the Tribe/Consortium have to return property used in the 
          operation of a retroceded program?
1000.338 What happens to a Tribe's/Consortium's mature contractor status 
          if it has retroceded a program that is also available for 
          self-determination contracting?
1000.339 How does retrocession affect a bureau's operation of the 
          retroceded program?

                    Subpart O_Trust Evaluation Review

1000.350 What is the purpose of this subpart?
1000.351 Does the Tribal Self-Governance Act of 1994 alter the trust 
          responsibility of the United States to Indian Tribes and 
          individuals under self-governance?
1000.352 What are ``trust resources'' for the purposes of the trust 
          evaluation process?
1000.353 What are ``trust functions'' for the purposes of the trust 
          evaluation process?

                        Annual Trust Evaluations

1000.354 What is a trust evaluation?
1000.355 How are trust evaluations conducted?
1000.356 May the trust evaluation process be used for additional 
          reviews?
1000.357 May the parties negotiate standards of review for purposes of 
          the trust evaluation?
1000.358 Can an initial review of the status of the trust asset be 
          conducted?
1000.359 What are the responsibilities of the Secretary's designated 
          representative(s) after the annual trust evaluation?
1000.360 Is the trust evaluation standard or process different when the 
          trust asset is held in trust for an individual Indian or 
          Indian allottee?
1000.361 Will the annual review include a review of the Secretary's 
          residual trust functions?
1000.362 What are the consequences of a finding of imminent jeopardy in 
          the annual trust evaluation?
1000.363 What if the trust evaluation reveals problems that do not rise 
          to the level of imminent jeopardy?
1000.364 Who is responsible for corrective action?
1000.365 What are the requirements of the review team report?
1000.366 Can the Department conduct more than one trust evaluation per 
          Tribe per year?
1000.367 Will the Department evaluate a Tribe's/Consortium's performance 
          of non-trust related programs?

                            Subpart P_Reports

1000.380 What is the purpose of this subpart?
1000.381 How is information about self-governance developed and 
          reported?
1000.382 What may the Tribe's/Consortium's annual report on self-
          governance address?

                   Subpart Q_Miscellaneous Provisions

1000.390 How can a Tribe/Consortium hire a Federal employee to help 
          implement an AFA?
1000.391 Can a Tribe/Consortium employee be detailed to a Federal 
          service position?
1000.392 How does the Freedom of Information Act apply?
1000.393 How does the Privacy Act apply?
1000.394 What audit requirements must a self-governance Tribe/Consortium 
          follow?
1000.395 Do OMB circulars and revisions apply to self-governance funding 
          agreements?
1000.396 Does a Tribe/Consortium have additional ongoing requirements to 
          maintain

[[Page 1053]]

          minimum standards for Tribe/Consortium management systems?
1000.397 Are there any restrictions on how AFA funds may be spent?
1000.398 May a Tribe/Consortium invest funds received under a self-
          governance agreement?
1000.399 How may interest or investment income that accrues on AFAs be 
          used?
1000.400 Can a Tribe/Consortium retain savings from programs?
1000.401 Can a Tribe/Consortium carry over funds not spent during the 
          term of the AFA?
1000.402 After a non-BIA AFA has been executed and the funds transferred 
          to a Tribe/Consortium, can a bureau request the return of 
          funds?
1000.403 How can a person or group appeal a decision or contest an 
          action related to a program operated by a Tribe/Consortium 
          under an AFA?
1000.404 Must self-governance Tribes/Consortia comply with the 
          Secretarial approval requirements of 25 U.S.C. 81, 82a, and 
          476 regarding professional and attorney contracts?
1000.405 Are AFA funds non-Federal funds for the purpose of meeting 
          matching requirements?
1000.406 Does Indian preference apply to services, activities, programs 
          and functions performed under a self-governance AFA?
1000.407 Do the wage and labor standards in the Davis-Bacon Act apply to 
          Tribes and Tribal Consortia?

                             Supply Sources

1000.408 Can a Tribe/Consortium use Federal supply sources in the 
          performance of an AFA?

                           Prompt Payment Act

1000.409 Does the Prompt Payment Act (31 U.S.C. 3901) apply to a non-
          BIA, non-Indian program AFA?

                           Subpart R--Appeals

1000.420 What does ``Title-I eligible programs'' mean in this subpart?
1000.421 What is the purpose of this subpart?
1000.422 How must disputes be handled?
1000.423 Are there any decisions that are not administratively 
          appealable under this subpart?
1000.424 Does a Tribe/Consortium have a right to an informal conference 
          to resolve any disputes?
1000.425 How does a Tribe/Consortium request an informal conference?
1000.426 How is an informal conference held?
1000.427 What happens after the informal conference?
1000.428 How may a Tribe/Consortium appeal a decision made after the AFA 
          or compact or amendment to an AFA or compact has been signed?
1000.429 What statutes and regulations govern resolution of disputes 
          concerning signed AFAs or compacts that are appealed to IBCA?
1000.430 To whom are appeals directed regarding reassumption for 
          imminent jeopardy?
1000.431 Does the Equal Access to Justice Act (EAJA) apply to appeals 
          under this subpart?
1000.432 To whom may a Tribe appeal a decision made before the AFA or an 
          amendment to the AFA or compact is signed?
1000.433 When and how must a Tribe/Consortium appeal an adverse pre-
          award decision?
1000.434 When must the bureau head (or appropriate Assistant Secretary) 
          issue a final decision in the pre-award appeal?
1000.435 When and how will the Assistant Secretary respond to an appeal 
          by a Tribe/Consortium?
1000.436 How may a Tribe/Consortium seek reconsideration of the 
          Secretary's decision involving a self-governance compact?
1000.437 When will the Secretary respond to a request for 
          reconsideration of a decision involving a self-governance 
          compact?
1000.438 May Tribes/Consortia appeal Department decisions to a Federal 
          court?

                     Subpart S_Conflicts of Interest

1000.460 What is an organizational conflict of interest?
1000.461 What must a Tribe/Consortium do if an organizational conflict 
          of interest arises under an AFA?
1000.462 When must a Tribe/Consortium regulate its employees or 
          subcontractors to avoid a personal conflict of interest?
1000.463 What types of personal conflicts of interest involving Tribal 
          officers, employees or subcontractors would have to be 
          regulated by a Tribe/Consortium?
1000.464 What personal conflicts of interest must the standards of 
          conduct regulate?
1000.465 May a Tribe/Consortium negotiate AFA provisions on conflicts of 
          interest to take the place of this subpart?

Appendix A to Part 1000--Model Compact of Self-Governance Between the 
          Tribe and the Department of the Interior

    Authority: 25 U.S.C. 458aa-gg.

    Source: 66 FR 78703, Dec. 15, 2000, unless otherwise noted.

[[Page 1054]]



                      Subpart A_General Provisions



Sec. 1000.1  Authority.

    This part is prepared and issued by the Secretary of the Interior 
under the negotiated rulemaking procedures in 5 U.S.C. 565.



Sec. 1000.2  Definitions.

    403(c) Program means a non-BIA program eligible under section 403(c) 
of the Indian Self-Determination and Education Assistance Act of 1975, 
as amended, 25 U.S.C. 450 et seq. and, specifically, a program, 
function, service, or activity that is of special geographic, historical 
or cultural significance to a self-governance Tribe/Consortium. These 
programs may be referred to, also, as ``nexus'' programs.
    Act means the Tribal Self-Governance Act, Title IV of the Indian 
Self-Determination and Education Assistance Act of 1975, Pub. L. 93-638, 
as added by Pub. L. 103-413, amended by Pub. L. 104-109, as amended.
    Applicant pool means Tribes/Consortia that the Director of the 
Office of Self-Governance has determined are eligible to participate in 
self-governance in accordance with Sec. 1000.16 of these regulations.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BIA Program means any program, service, function, or activity, or 
portion thereof, that is performed or administered by the Department 
through the Bureau of Indian Affairs.
    Bureau means a bureau or office of the Department of the Interior.
    Compact means an executed document that affirms the government-to-
government relationship between a self-governance Tribe and the United 
States. The compact differs from an annual funding agreement (AFA) in 
that parts of the compact apply to all bureaus within the Department of 
the Interior rather than a single bureau.
    Consortium means an organization of Indian Tribes that is authorized 
by those Tribes to participate in self-governance under this part and is 
responsible for negotiating, executing, and implementing annual funding 
agreements and compacts.
    Construction management services (CMS) means activities limited to 
administrative support services, coordination, oversight of engineers 
and construction activities. CMS services include services that precede 
project design: all project design and actual construction activities 
are subject to Subpart K of these regulations whether performed by a 
Tribe subcontractor, or consultant.
    Days means calendar days, except where the last day of any time 
period specified in this part falls on a Saturday, Sunday, or a Federal 
holiday, the period must carry over to the next business day unless 
otherwise prohibited by law.
    Director means the Director of the Office of Self-Governance (OSG).
    DOI or Department means the Department of the Interior.
    Funding year means either fiscal or calendar year.
    Indian means a person who is a member of an Indian Tribe.
    Indian Tribe or Tribe means any Indian Tribe, band, nation or other 
organized group or community, including pueblos, rancherias, colonies 
and any Alaska Native village, or regional or village corporations as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act, that is recognized as eligible for special programs and 
services provided by the United States to Indians because of their 
status as Indians.
    Indirect cost rates means the rate(s) arrived at through negotiation 
between an Indian Tribe/Consortium and the appropriate Federal agency.
    Indirect costs means costs incurred for a common or joint purpose 
benefitting more than one program and that are not readily assignable to 
individual programs.
    Nexus Program means a 403(c) Program as defined in this section.
    Non-BIA Bureau means any bureau or office within the Department of 
the Interior other than the Bureau of Indian Affairs.
    Non-BIA programs means those programs administered by bureaus or 
offices other than the Bureau of Indian Affairs within the Department of 
the Interior.

[[Page 1055]]

    Office of Self-Governance (OSG) means the office within the Office 
of the Assistant Secretary-Indian Affairs responsible for the 
implementation and development of the Tribal Self-Governance Program.
    Program means any program, service, function, or activity, or 
portions of programs administered by a bureau within the Department of 
the Interior.
    Pub. L. 93-638 means sections 1-9 and Title I of the Indian Self-
Determination and Education Assistance Act of 1975, as amended.
    Reassumption means that the Secretary reassumes control or operation 
of a program under Sec. 1000.300 et seq.
    Retained Tribal shares means those funds that were available as a 
Tribal share but under the AFA were left with BIA to administer.
    Retrocession means the voluntary return by a Tribe/Consortium to a 
bureau of a program operated under an AFA before the agreement expires.
    Secretary means the Secretary of the Interior (DOI) or his or her 
designee authorized to act on the behalf of the Secretary as to the 
matter at hand.
    Self-governance Tribe/Consortium means a Tribe or Consortium that 
participates in permanent self-governance through application and 
selection from the applicant pool or has participated in the Tribal 
self-governance demonstration project. May also be referred to as 
``participating Tribe/Consortium.''
    Successor AFA means a funding agreement negotiated after a Tribe's/
Consortium's initial agreement with a bureau for continuing to perform a 
particular program. The parties to the AFA should generally use the 
terms of the existing AFA to expedite and simplify the exchange of 
information and the negotiation process.
    Tribal share means the amount determined for that Tribe/Consortium 
for a particular program at BIA region, agency, and central office 
levels under sec. 403(g)(3) and 405(d) of the Act.



Sec. 1000.3  Purpose and scope.

    (a) General. This part codifies uniform and consistent rules for the 
Department of the Interior (DOI) in implementing Title IV of the Indian 
Self-Determination and Education Assistance Act (ISDEA) Public Law 93-
638, 25 U.S.C. 450 et seq., as amended by Title II of Pub. L. 103-413, 
the Tribal Self-Governance Act of 1994 (108 Stat. 4250, October 25, 
1994).
    (b) Information Collection. The information provided by the Tribes 
will be used by the Department for a variety of purposes. The first 
purpose will be to ensure that qualified applicants are admitted into 
the applicant pool consistent with the requirements of the Act. In 
addition, Tribes seeking grant assistance to meet the planning 
requirements for admission into the applicant pool, will provide 
information so that grants can be awarded to Tribes meeting basic 
eligibility (i.e. Tribal resolution indicating that the Tribe wants to 
plan for Self-Governance and has no material audit exceptions for the 
last three years of audits). There is no confidential information being 
solicited and confidentiality is not extended under the law. Other 
documentation is required to meet the reporting requirements as called 
for in section 405 of the Act. The information being provided by the 
Tribes is required to obtain a benefit, however, no person is required 
to respond to an information collection request unless the form or 
regulation requesting the information has a currently valid OMB control 
(clearance) number. Comments were solicited from the Tribes and the 
general public with respect to this collection. No adverse comments were 
received. The information collection has been cleared by OMB. The number 
is OMB control 1076-0143. The approval expires on April 30, 
2003.



Sec. 1000.4  Policy statement.

    (a) Congressional findings. In the Tribal Self-Governance Act of 
1994, the Congress found that:
    (1) The Tribal right of self-governance flows from the inherent 
sovereignty of Indian Tribes and nations;
    (2) The United States recognizes a special government-to-government 
relationship with Indian Tribes, including the right of the Tribes to 
self-governance, as reflected in the Constitution, treaties, Federal 
statues, and the course of dealings of the United States with Indian 
Tribes;

[[Page 1056]]

    (3) Although progress had been made, the Federal bureaucracy, with 
its centralized rules and regulations, had eroded Tribal self-governance 
and dominated Tribal affairs;
    (4) The Tribal Self-Governance Demonstration Project was designed to 
improve and perpetuate the government-to-government relationship between 
Indian Tribes and the United States and to strengthen Tribal control 
over Federal funding and program management; and
    (5) Congress has reviewed the results of the Tribal Self-Governance 
demonstration project and finds that:
    (i) Transferring control over funding and decision making to Tribal 
governments, upon Tribal request, for Federal programs is an effective 
way to implement the Federal policy of government-to-government 
relations with Indian Tribes; and
    (ii) Transferring control over funding and decision making to Tribal 
governments, upon request, for Federal programs strengthens the Federal 
policy of Indian self-determination.
    (b) Congressional declaration of policy. It is the policy of the 
Tribal Self-Governance Act to permanently establish and implement self-
governance:
    (1) To enable the United States to maintain and improve its unique 
and continuing relationship with, and responsibility to, Indian Tribes;
    (2) To permit each Tribe to choose the extent of its participation 
in self-governance;
    (3) To coexist with the provisions of the Indian Self-Determination 
and Education Assistance Act relating to the provision of Indian 
services by designated Federal agencies;
    (4) To ensure the continuation of the trust responsibility of the 
United States to Indian Tribes and Indian individuals;
    (5) To permit an orderly transition from Federal domination of 
programs and services to provide Indian Tribes with meaningful authority 
to plan, conduct, redesign, and administer programs, services, 
functions, and activities that meet the needs of the individual Tribal 
communities; and
    (6) To provide for an orderly transition through a planned and 
measurable parallel reduction in the Federal bureaucracy.
    (c) Secretarial self-governance policies. (1) It is the policy of 
the Secretary to fully support and implement the foregoing policies to 
the full extent of the Secretary's authority.
    (2) It is the policy of the Secretary to recognize and respect the 
unique government-to-government relationship between Tribes, as 
sovereign governments, and the United States.
    (3) It is the policy of the Secretary to have all bureaus of the 
Department work cooperatively and pro-actively with Tribes and Tribal 
Consortia on a government-to-government basis within the framework of 
the Act and any other applicable provision of law, so as to make the 
ideals of self-determination and self-governance a reality.
    (4) It is the policy of the Secretary to have all bureaus of the 
Department actively share information with Tribes and Tribal Consortia 
to encourage Tribes and Tribal Consortia to become knowledgeable about 
the Department's programs and the opportunities to include them in an 
annual funding agreement.
    (5) It is the policy of the Secretary that all bureaus of the 
Department will negotiate in good faith, interpret each applicable 
Federal law and regulation in a manner that will facilitate the 
inclusion of programs in each annual funding agreement authorized, and 
enter into such annual funding agreements under Title IV, whenever 
possible.
    (6) It is the policy of the Secretary to afford Tribes and Tribal 
Consortia the maximum flexibility and discretion necessary to meet the 
needs of their communities consistent with their diverse demographic, 
geographic, economic, cultural, health, social, religious, and 
institutional needs. These policies are designed to facilitate and 
encourage Tribes and Tribal Consortia to participate in the planning, 
conduct, and administration of those Federal programs, included, or 
eligible for inclusion in an annual funding agreement.
    (7) It is the policy of the Secretary, to the extent of the 
Secretary's authority, to maintain active communication with Tribal 
governments regarding

[[Page 1057]]

budgetary matters applicable to programs subject to the Act, and that 
are included in an individual self-governance annual funding agreement.
    (8) It is the policy of the Secretary to implement policies, 
procedures, and practices at the Department to ensure that the letter, 
spirit, and goals of the Tribal Self-Governance Act are fully and 
successfully implemented.
    (9) Executive Order 13084 on Consultation and Coordination with 
Indian Tribal Governments and any subsequent Executive Orders regarding 
consultation will apply to the implementation of these regulations.



  Subpart B_Selection of Additional Tribes for Participation in Tribal 
                             Self-Governance

                         Purpose and Definitions



Sec. 1000.10  What is the purpose of this subpart?

    This subpart describes the selection process and eligibility 
criteria that the Secretary uses to decide that Indian Tribes may 
participate in Tribal self-governance as authorized by section 402 of 
the Tribal Self-Governance Act of 1994.



Sec. 1000.11  What is the ``applicant pool''?

    The applicant pool is the pool of Tribes/Consortia that the Director 
of the Office of Self-Governance has determined are eligible to 
participate in self-governance.



Sec. 1000.12  What is a ``signatory''?

    A signatory is a Tribe or Consortium that meets the eligibility 
criteria in Sec. 1000.16 and directly signs the agreements. A signatory 
may exercise all of the rights and responsibilities outlined in the 
compact and annual funding agreement and is legally responsible for all 
financial and administrative decisions made by the signatory.



Sec. 1000.13  What is a ``nonsignatory Tribe''?

    (a) A nonsignatory Tribe is a Tribe that either:
    (1) Does not meet the eligibility criteria in Sec. 1000.16 and, by 
resolution of its governing body, authorizes a Consortium to participate 
in self-governance on its behalf.
    (2) Meets the eligibility criteria in Sec. 1000.16 but chooses to 
be a member of a Consortium and have a representative of the Consortium 
sign the compact and AFA on its behalf.
    (b) A non-signatory tribe under paragraph (a)(1) of this section:
    (1) May not sign the compact and AFA. A representative of the 
Consortium must sign both documents on behalf of the Tribe.
    (2) May only become a ``signatory Tribe'' if it independently meets 
the eligibility criteria in Sec. 1000.16.

                               Eligibility



Sec. 1000.14  Who is eligible to participate in Tribal self-governance?

    Two types of entities are eligible to participate in Tribal self-
governance:
    (a) Indian Tribes; and
    (b) Consortia of Indian Tribes.



Sec. 1000.15  How many additional Tribes/Consortia may participate in 
self-governance per year?

    (a) Sections 402(b) and (c) of the Act authorize the Director to 
select up to 50 additional Indian Tribes per year from an ``applicant 
pool''. A Consortium of Indian Tribes counts as one Tribe for purposes 
of calculating the 50 additional Tribes per year.
    (b) Any signatory Tribe that signed a compact and AFA under the 
Tribal Self-Governance Demonstration project may negotiate its own 
compact and AFA in accordance with this subpart without being counted 
against the 50-Tribe limitation in any given year.



Sec. 1000.16  What criteria must a Tribe/Consortium satisfy to be eligible 
for admission to the ``applicant pool''?

    To be admitted into the applicant pool, a Tribe/Consortium must 
either be an Indian Tribe or a Consortium of Indian Tribes and comply 
with Sec. 1000.17.



Sec. 1000.17  What documents must a Tribe/Consortium submit to OSG to apply 
for admission to the applicant pool?

    In addition to the application required by Sec. 1000.23, the Tribe/
Consortium must submit to OSG documentation that shows all of the 
following:

[[Page 1058]]

    (a) Successful completion of a planning phase and a planning report. 
The requirements for both of these are described in Sec. 1000.19 and 
Sec. 1000.20. A Consortium's planning activities satisfy this 
requirement for all its member Tribes for the purpose of the Consortium 
meeting this requirement;
    (b) A request for participation in self-governance by a Tribal 
resolution and/or a final official action by the Tribal governing body. 
For a Consortium, the governing body of each Tribe must authorize its 
participation by a Tribal resolution and/or a final official action by 
the Tribal governing body that specifies the scope of the Consortium's 
authority to act on behalf of the Tribe.
    (c) A demonstration of financial stability and financial management 
capability for the previous 3 fiscal years. This will be done by 
providing, as part of the application, an audit report prepared in 
accordance with procedures promulgated under the Single Audit Act 
Amendments of 1996, 31 U.S.C. 7501, et seq., for the previous 3 years of 
the self-determination contracts. These audits must not contain material 
audit exceptions as defined in Sec. 1000.21.



Sec. 1000.18  May a Consortium member Tribe withdraw from the Consortium 
and become a member of the applicant pool?

    In accordance with the expressed terms of the compact or written 
agreement of the Consortium, a Consortium member Tribe (either a 
signatory or nonsignatory Tribe) may withdraw from the Consortium to 
directly negotiate a compact and AFA. The withdrawing Tribe must do the 
following.
    (a) Independently meet all of the eligibility criteria in Sec. Sec. 
1000.14 through 1000.20. If a Consortium's planning activities and 
report specifically consider self-governance activities for a member 
Tribe, that planning activity and report may be used to satisfy the 
planning requirements for the member Tribe if it applies for self-
governance status on its own.
    (b) Submit a notice of withdrawal to OSG and the Consortium as 
evidenced by a resolution of the Tribal governing body.



Sec. 1000.19  What is done during the ``planning phase''?

    The Act requires that all Tribes/Consortia seeking to participate in 
Tribal self-governance complete a planning phase. During the planning 
phase, the Tribe/Consortium must conduct legal and budgetary research 
and internal Tribal government and organizational planning. The 
availability of BIA grant funds for planning activities will be in 
accordance with subpart C. The planning phase may be completed without a 
planning grant.



Sec. 1000.20  What is required in a planning report?

    As evidence that the Tribe/Consortium has completed the planning 
phase, the Tribe/Consortium must prepare and submit to the Secretary a 
final planning report.
    (a) The planning report must:
    (1) Identify BIA and non-BIA programs that the Tribe/Consortium may 
wish to subsequently negotiate for inclusion in a compact and AFA;
    (2) Describe the Tribe's/Consortium's planning activities for both 
BIA and non-BIA programs that may be negotiated;
    (3) Identify the major benefits derived from the planning 
activities;
    (4) Identify the process that the Tribe/Consortium will use to 
resolve any complaints by service recipients;
    (5) Identify any organizational planning that the Tribe/Consortium 
has completed in anticipation of implementing Tribal self-governance; 
and
    (6) Indicate if the Tribe's/Consortium's planning efforts have 
revealed that its current organization is adequate to assume programs 
under Tribal self-governance.
    (b) In supplying the information required by paragraph (a)(5) of 
this section:
    (1) For BIA programs, a Tribe/Consortium should describe the process 
that it will use to debate and decide the setting of priorities for the 
funds it will receive from its AFA.
    (2) For non-BIA programs that the Tribe/Consortium may wish to 
negotiate, the report should describe how the Tribe/Consortium proposes 
to perform the programs.

[[Page 1059]]



Sec. 1000.21  When does a Tribe/Consortium have a ``material audit 
exception''?

    A Tribe/Consortium has a material audit exception if any of the 
audits that it submitted under Sec. 1000.17(c) identifies:
    (a) A material weakness, that is a condition in which the design or 
operation of one or more of the internal control components does reduce 
to a relatively low level the risk that misstatements in amounts that 
would be material in relation to the financial statements being audited 
may occur and not be detected within a timely period by employees in the 
normal course of performing their assigned functions;
    (b) a single finding of known questioned costs subsequently 
disallowed by a contracting officer or awarding official that exceeds 
$10,000. If the audits submitted under Sec. 1000.17(c) identify any of 
the conditions described in this section, the Tribe/Consortium must also 
submit copies of the contracting officer's findings and determinations.



Sec. 1000.22  What are the consequences of having a material audit 
exception?

    If a Tribe/Consortium has a material audit exception, the Tribe/
Consortium is ineligible to participate in self-governance until the 
Tribe/Consortium meets the eligibility criteria in Sec. 1000.16.

                    Admission Into the Applicant Pool



Sec. 1000.23  How is a Tribe/Consortium admitted to the applicant pool?

    To be considered for admission in the applicant pool, a Tribe/
Consortium must submit an application to the Director, Office of Self-
Governance, 1849 C Street NW; MS 2542-MIB; Department of the Interior; 
Washington, DC 20240. The application must contain the documentation 
required in Sec. 1000.17.



Sec. 1000.24  When does OSG accept applications to become a member of 
the applicant pool?

    OSG accepts applications to become a member of the applicant pool at 
any time.



Sec. 1000.25  What are the deadlines for a Tribe/Consortium in the 
applicant pool to negotiate a compact and annual funding agreement (AFA)?

    (a) To be considered for negotiations in any year, a Tribe/
Consortium must be a member of the applicant pool on March 1 of the year 
in which the negotiations are to take place.
    (b) An applicant may be admitted into the applicant pool during one 
year and selected to negotiate a compact and AFA in a subsequent year. 
In this case, the applicant must, before March 1 of the negotiation 
year, submit to OSG updated documentation that permits OSG to evaluate 
whether the Tribe/Consortium still satisfies the application criteria in 
1000.17.



Sec. 1000.26  Under what circumstances will a Tribe/Consortium be removed 
from the applicant pool?

    Once admitted into the applicant pool, a Tribe/Consortium will only 
be removed if it:
    (a) Fails to satisfy the audit criteria in Sec. 1000.17(c); or
    (b) Submits to OSG a Tribal resolution and/or official action by the 
Tribal governing body requesting removal.



Sec. 1000.27  How does the Director select which Tribes in the applicant 
pool become self-governance Tribes?

    The Director selects up to the first 50 Tribes from the applicant 
pool in any given year ranked according to the earliest postmark date of 
complete applications. If multiple complete applications have the same 
postmark date and there are insufficient slots available for that year, 
the Director will determine priority through random selection. A 
representative of each Tribe/Consortium that has submitted an 
application subject to random selection may, at the option of the Tribe/
Consortium, be present when the selection is made.



Sec. 1000.28  What happens if an application is not complete?

    (a) If OSG determines that a Tribe's/Consortium's application is 
deficient, OSG will immediately notify the Tribe/Consortium of the 
deficiency by letter, certified mail, return receipt requested. The 
letter will explain what

[[Page 1060]]

the Tribe/Consortium must do to correct the deficiency.
    (b) The Tribe/Consortium will have 20 working days from the date of 
receiving the letter to mail or telefax the corrected material and 
retain the applicant's original postmark.
    (c) If the corrected material is deficient, the date of entry into 
the applicant pool will be the date the complete application is 
postmarked.
    (d) If the postmark or date on the applicant's response letter or 
telefax is more than 20 working days after the date the applicant 
received the notice-of-deficiency letter, the date of entry into the 
applicant pool will be the date of full receipt of a completed 
application.



Sec. 1000.29  What happens if a Tribe/Consortium is selected from the 

applicant pool but does not execute a compact and an AFA during the 
calendar year?

    (a) The Tribe/Consortium remains eligible to negotiate a compact and 
annual funding agreement at any time unless:
    (1) It notifies the Director in writing that it no longer wishes to 
be eligible to participate in the Tribal Self-Governance Program;
    (2) Fails to satisfy the audit requirements of Sec. 1000.17(c); or
    (3) Submits documentation evidencing a Tribal resolution requesting 
removal from the application pool.
    (b) The failure of the Tribe/Consortium to execute an agreement has 
no effect on the selection of up to 50 additional Tribes/Consortia in a 
subsequent year.



Sec. 1000.30  May a Tribe/Consortium be selected to negotiate an AFA 
under section 403(b)(2) without having or negotiating an AFA under 
section 403(b)(1)?

    Yes, a Tribe/Consortium may be selected to negotiate an AFA under 
section 403(b)(2) without having or negotiating an AFA under section 
403(b)(1).



Sec. 1000.31  May a Tribe/Consortium be selected to negotiate an AFA 

under section 403(c) without negotiating an AFA under section 403(b)(1) 
and/or section 403(b)(2)?

    No, section 403(c) of the Act states that any programs of special 
geographic, cultural, or historical significance to the Tribe/Consortium 
must be included in AFAs negotiated under section 403(a) and/or section 
403(b). A Tribe may be selected to negotiate an AFA under section 403(c) 
at the same time that it negotiates an AFA under section 403(b)(1) and/
or section 403(b)(2).

          Withdrawal From a Consortium Annual Funding Agreement



Sec. 1000.32  What happens when a Tribe wishes to withdraw from a Consortium 
annual funding agreement?

    (a) A Tribe wishing to withdraw from a Consortium's AFA must notify 
the Consortium, bureau, and OSG of the intent to withdraw. The notice 
must be:
    (1) In the form of a Tribal resolution or other official action by 
the Tribal governing body; and
    (2) Received no later than 180 days before the effective date of the 
next AFA.
    (b) The resolution referred to in paragraph (a)(1) of this section 
must indicate whether the Tribe wishes the withdrawn programs to be 
administered under a Title IV AFA, Title I contract, or directly by the 
bureau.
    (c) The effective date of the withdrawal will be the date on which 
the current agreement expires, unless the Consortium, the Tribe, OSG, 
and the appropriate bureau agree otherwise.



Sec. 1000.33  What amount of funding is to be removed from the Consortium's 
AFA for the withdrawing Tribe?

    When a Tribe withdraws from a Consortium, the Consortium's AFA must 
be reduced by the portion of funds attributable to the withdrawing 
Tribe. The Consortium must reduce the AFA on the same basis or 
methodology upon which the funds were included in the Consortium's AFA.
    (a) If there is not a clear identifiable methodology upon which to 
base the reduction for a particular program, the

[[Page 1061]]

Consortium, Tribe, OSG, and the bureau must negotiate an appropriate 
amount on a case-by-case basis.
    (b) If a Tribe withdraws in the middle of a funding year, the 
Consortium agreement must be amended to reflect:
    (1) A reduction based on the amount of funds passed directly to the 
Tribe, or already spent or obligated by the Consortium on behalf of the 
Tribe; and
    (2) That the Consortium is no longer providing those programs 
associated with the withdrawn funds.
    (c) Carryover funds from a previous fiscal year may be factored into 
the amount by which the Consortium agreement is reduced if:
    (1) The Consortium, Tribe, OSG, and bureau agree it is appropriate; 
and
    (2) The funds are clearly identifiable.



Sec. 1000.34  What happens if there is a dispute between the Consortium 
and the withdrawing Tribe?

    (a) At least 15 days before the 90-day Congressional review period 
of the next AFA, the Consortium, OSG, bureau, and the withdrawing Tribe 
must reach an agreement on the amount of funding and other issues 
associated with the program or programs involved.
    (b) If agreement is not reached:
    (1) For BIA and OIEP programs, at least 5 days before the 90-day 
Congressional review, the Director must make a decision on the funding 
or other issues involved.
    (2) For non-BIA programs, the bureau head will make a decision on 
the funding or other issues involved.
    (c) A copy of the decision made under paragraph (b) of this section 
must be distributed in accordance with the following table.

------------------------------------------------------------------------
                                           then a copy of the decision
        If the program is . . .               must be sent to . . .
------------------------------------------------------------------------
(1) A BIA program......................  BIA regional director, the
                                          Deputy Commissioner of Indian
                                          Affairs, the withdrawing
                                          Tribe, and the Consortium.
(2) An OIEP program....................  the OIEP line officer, the
                                          Director of OIEP, the
                                          withdrawing Tribe, and the
                                          Consortium.
------------------------------------------------------------------------

    (d) Any decision made under paragraph (b) of this section is 
appealable under subpart R of this part.



Sec. 1000.35  When a Tribe withdraws from a Consortium, is the Secretary 

required to award to the withdrawing Tribe a portion of funds associated 
with a construction project if the withdrawing Tribe so requests?

    Under Sec. 1000.32 of this part, a Tribe may withdraw from a 
Consortium and request that the Secretary award the Tribe its portion of 
a construction project's funds. The Secretary may decide not to award 
these funds if the Secretary determines that the award of the 
withdrawing Tribe's portion of funds would affect the ability of the 
remaining members of the Consortium to complete a severable or non-
severable phase of the project within available funding.
    (a) An example of a non-severable phase of a project would be the 
construction of a single building to serve all members of a Consortium.
    (b) An example of a severable phase of a project would be the 
funding of a road in one village where the Consortium would be able to 
complete the roads in other villages that were part of the project 
approved initially in the AFA.
    (c) The Secretary's decision under this section may be appealed 
under Sec. 1000.428 of these regulations.



        Subpart C_Section 402(d) Planning and Negotiation Grants

                       Purpose and Types of Grants



Sec. 1000.40  What is the purpose of this subpart?

    This subpart describes the availability and process of applying for 
planning and negotiation grants authorized by section 402(d) of the Act 
to help Tribes meet costs incurred in:
    (a) Meeting the planning phase requirement of the Act, including 
planning to negotiate for non-BIA programs; and
    (b) Conducting negotiations.



Sec. 1000.41  What types of grants are available?

    Three categories of grants may be available:
    (a) Negotiation grants may be awarded to the Tribes/Consortia that 
have

[[Page 1062]]

been selected from the applicant pool as described in subpart B of this 
part;
    (b) Planning grants may be available to Tribes/Consortia requiring 
advance funding to meet the planning phase requirement of the Act; and
    (c) Financial assistance may be available to Tribes/Consortia to 
plan for negotiating for non-BIA programs, as described in subpart D and 
Sec. Sec. 1000.42-1000.45 of this subpart.

               Availability, Amount, and Number of Grants



Sec. 1000.42  Will grants always be made available to meet the planning 
phase requirement as described in section 402(d) of the Act?

    No, grants to cover some or all of the planning costs that a Tribe/
Consortium may incur, depend upon the availability of funds appropriated 
by Congress. Notice of availability of grants will be published in the 
Federal Register as described in Sec. 1000.45.



Sec. 1000.43  May a Tribe/Consortium use its own resources to meet its 
self-governance planning and negotiation expenses?

    Yes, a Tribe/Consortium may use its own resources to meet these 
costs. Receiving a grant is not necessary to meet the planning phase 
requirement of the Act or to negotiate a compact and an AFA.



Sec. 1000.44  What happens if there are insufficient funds to meet the 
Tribal requests for planning/negotiation grants in any given year?

    If appropriated funds are available but insufficient to meet the 
total requests from Tribes/Consortia:
    (a) First priority will be given to Tribes/Consortia that have been 
selected from the applicant pool to negotiate an AFA; and
    (b) Second priority will be given to Tribes/Consortia that require 
advance funds to meet the planning requirement for entry into the self-
governance program.



Sec. 1000.45  How many grants will the Department make each year and 
what funding will be available?

    The number and size of grants awarded each year will depend on 
Congressional appropriations and Tribal interest. By no later than 
January 1 of each year, the Director will publish a notice in the 
Federal Register that provides relevant details about the application 
process, including the funds available, timeframes, and requirements for 
negotiation grants, advance planning grants, and financial assistance as 
described in subpart D of this part.

                           Selection Criteria



Sec. 1000.46  Which Tribes/Consortia may be selected to receive a 
negotiation grant?

    Any Tribe/Consortium that has been accepted into the applicant pool 
and has been accepted to negotiate a self-governance AFA may apply for a 
negotiation grant. By March 15 of each year, the Director will publish a 
list of additional Tribes/Consortia that have been selected for 
negotiation along with information on how to apply for negotiation 
grants.



Sec. 1000.47  What must a Tribe/Consortium do to receive a negotiation 
grant?

    If funds are available, a grant will be awarded to help cover the 
costs of preparing for and negotiating a compact and an AFA. These 
grants are not competitive. To receive a negotiation grant, a Tribe/
Consortium must:
    (a) Be selected from the applicant pool to negotiate an AFA;
    (b) Be qualified as eligible to receive a negotiation grant in the 
Federal Register notice discussed in Sec. 1000.45;
    (c) Not have received a negotiation grant within the 3 years 
preceding the date of the latest Federal Register announcement;
    (d) Submit a letter affirming its readiness to negotiate; and
    (e) Formally request a negotiation grant to prepare for and 
negotiate an AFA.



Sec. 1000.48  What must a Tribe do if it does not wish to receive a 
negotiation grant?

    A selected Tribe/Consortium may elect to negotiate without applying 
for a negotiation grant. In such a case, the Tribe/Consortium should 
notify OSG in writing so that funds can be reallocated for other grants.

[[Page 1063]]

                     Advance Planning Grant Funding



Sec. 1000.49  Who can apply for an advance planning grant?

    Any Tribe/Consortium that is not a self-governance Tribe and needs 
advance funding to complete the planning phase requirement may apply. 
Tribes/Consortia that have received a planning grant within 3 years 
preceding the date of the latest Federal Register announcement are not 
eligible.



Sec. 1000.50  What must a Tribe/Consortium seeking a planning grant 
submit in order to meet the planning phase requirements?

    A Tribe/Consortium must submit the following material:
    (a) A Tribal resolution or other final action of the Tribal 
governing body indicating a desire to plan for Tribal self-governance.
    (b) Audits from the last 3 years that document that the Tribe/
Consortium is free from material audit exceptions. In order to meet this 
requirement, a Tribe/Consortium may use the audit currently being 
conducted on its operations if this audit is submitted before the Tribe/
Consortium completes the planning activity.
    (c) A proposal that includes:
    (1) The Tribe's/Consortium's plans for conducting legal and 
budgetary research;
    (2) The Tribe's/Consortium's plans for conducting internal Tribal 
government and organizational planning;
    (3) A timeline indicating when planning will start and end, and;
    (4) Evidence that the Tribe/Consortium can perform the tasks 
associated with its proposal (i.e., resumes and position descriptions of 
key staff or consultants to be used).



Sec. 1000.51  How will Tribes/Consortia know when and how to apply for 
planning grants?

    The number and size of grants awarded each year will depend on 
Congressional appropriations. By no later than January 1 of each year, 
the Director will publish in the Federal Register a notice concerning 
the availability of planning grants for additional Tribes. This notice 
must identify the specific details for applying.



Sec. 1000.52  What criteria will the Director use to award advance planning 
grants?

    Advance planning grants are discretionary and based on need. The 
Director will use the following criteria to determine whether or not to 
award a planning grant to a Tribe/Consortium before the Tribe/Consortium 
is selected into the applicant pool.
    (a) Completeness of application as described in Sec. 1000.50.
    (b) Financial need. The Director will rank applications according to 
the percent of Tribal resources that comprise total resources covered by 
the latest A-133 audit. Priority will be given to applications that have 
a lower level of Tribal resources as a percent of total resources.
    (c) Other factors that the Tribe may identify as documenting its 
previous efforts to participate in self-governance and demonstrating its 
readiness to enter into a self-governance agreement.



Sec. 1000.53  Can Tribes/Consortia that receive advance planning grants 
also apply for a negotiation grant?

    Yes, Tribes/Consortia that successfully complete the planning 
activity and are selected may apply to be included in the applicant 
pool. Once approved for inclusion in the applicant pool, the Tribe/
Consortium may apply for a negotiation grant according to the process in 
Sec. Sec. 1000.46-1000.48.



Sec. 1000.54  How will a Tribe/Consortium know whether or not it has 
been selected to receive an advance planning grant?

    No later than June 1, the Director will notify the Tribe/Consortium 
by letter whether it has been selected to receive an advance planning 
grant.



Sec. 1000.55  Can a Tribe/Consortium appeal within DOI the Director's 
decision not to award a grant under this subpart?

    No, the Director's decision to award or not to award a grant under 
this subpart is final for the Department.

[[Page 1064]]



Subpart D_Other Financial Assistance for Planning and Negotiation Grants 
                          for Non-BIA Programs

                         Purpose and Eligibility



Sec. 1000.60  What is the purpose of this subpart?

    This subpart describes the availability and process of applying for 
other financial assistance that may be available for planning and 
negotiating for a non-BIA program.



Sec. 1000.61  Are other funds available to self-governance Tribes/Consortia 
for planning and negotiating with non-BIA bureaus?

    Yes, Tribes/Consortia may contact OSG to determine if OSG has funds 
available for the purpose of planning and negotiating with non-BIA 
bureaus under this subpart. A Tribe/Consortium may also ask a non-BIA 
bureau for information on any funds that may be available from that 
bureau.

                   Eligibility and Application Process



Sec. 1000.62  Who can apply to OSG for grants to plan and negotiate 
non-BIA programs?

    Any Tribe/Consortium that is in the applicant pool, or has been 
selected from the applicant pool or that has an existing AFA.



Sec. 1000.63  Under what circumstances may planning and negotiation grants 
be awarded to Tribes/Consortia?

    At the discretion of the Director, grants may be awarded when 
requested by the Tribe. Tribes/Consortia may submit only one application 
per year for a grant under this section.



Sec. 1000.64  How does the Tribe/Consortium know when and how to apply to 
OSG for a planning and negotiation grant?

    When funds are available, the Director will publish a notice in the 
Federal Register announcing their availability and a deadline for 
submitting an application.



Sec. 1000.65  What kinds of activities do planning and negotiation grants 
support?

    The planning and negotiation grants support activities such as, but 
not limited to, the following:
    (a) Information gathering and analysis;
    (b) Planning activities, that may include notification and 
consultation with the appropriate non-BIA bureau and identification and/
or analysis of activities, resources, and capabilities that may be 
needed for the Tribe/Consortium to assume non-BIA programs; and
    (c) Negotiation activities.



Sec. 1000.66  What must be included in the application?

    The application for a planning and negotiation grant must include:
    (a) Written notification by the governing body or its authorized 
representative of the Tribe's/Consortium's intent to engage in planning/
negotiation activities like those described in Sec. 1000.65;
    (b) Written description of the planning and/or negotiation 
activities that the Tribe/Consortium intends to undertake, including, if 
appropriate, documentation of the relationship between the proposed 
activities and the Tribe/Consortium;
    (c) The proposed timeline for completion of the planning and/or 
negotiation activities to be undertaken; and
    (d) The amount requested from OSG.



Sec. 1000.67  How will the Director award planning and negotiation grants?

    The Director must review all grant applications received by the date 
specified in the announcement to determine whether or not the 
applications include the required elements outlined in the announcement. 
OSG must rank the complete applications submitted by the deadline using 
the criteria in Sec. 1000.70.



Sec. 1000.68  May non-BIA bureaus provide technical assistance to a 
Tribe/Consortium in drafting its planning grant application?

    Yes, upon request from the Tribe/Consortium, a non-BIA bureau may 
provide technical assistance to the

[[Page 1065]]

Tribe/Consortium in the drafting of its planning grant application.



Sec. 1000.69  How can a Tribe/Consortium obtain comments or selection 

documents received or utilized after OSG has made a decision on a planning 
grant application?

    A Tribe/Consortium may request comments or selection documents under 
the Freedom of Information Act.



Sec. 1000.70  What criteria will the Director use to rank the applications 
and how many maximum points can be awarded for each criterion?

    The Director will use the following criteria and point system to 
rank the applications:
    (a) The application contains a clear statement of objectives and 
timelines to complete the proposed planning or negotiation activity and 
demonstrates that the objectives are legally authorized and achievable. 
(20 points)
    (b) The proposed budget expenses are reasonable. (10 points)
    (c) The proposed project demonstrates a new or unique approach to 
Tribal self-governance or broadens self-governance to include new 
activities within the Department. (5 points)



Sec. 1000.71  Can an applicant appeal a decision not to award a grant?

    No, all decisions made by the Director to award or not to award a 
grant under this subpart are final for the Department.



Sec. 1000.72  Will OSG notify Tribes/Consortia and affected non-BIA 
bureaus of the results of the selection process?

    Yes, OSG will notify all applicant Tribes/Consortia and affected 
non-BIA bureaus in writing as soon as possible after completing the 
selection process.



Sec. 1000.73  Once a Tribe/Consortium has been awarded a grant, may 
the Tribe/Consortium obtain information from a non-BIA bureau?

    Yes, see Sec. 1000.169.



    Subpart E_Annual Funding Agreements for Bureau of Indian Affairs 
                                Programs



Sec. 1000.80  What is the purpose of this subpart?

    This subpart describes the components of annual funding agreements 
for BIA programs.



Sec. 1000.81  What is an annual funding agreement (AFA)?

    Annual funding agreements are legally binding and mutually 
enforceable written agreements negotiated and entered into annually 
between a self-governance Tribe/Consortium and BIA.

             Contents and Scope of Annual Funding Agreements



Sec. 1000.82  What types of provisions must be included in a BIA AFA?

    Each AFA must specify the programs and it must also specify the 
applicable funding:
    (a) Retained by BIA for ``inherently Federal functions'' identified 
as ``residuals'' (See Sec. 1000.94);
    (b) Transferred or to be transferred to the Tribe/Consortium (See 
Sec. 1000.91); and
    (c) Retained by BIA to carry out functions that the Tribe/Consortium 
could have assumed but elected to leave with BIA. (See Sec. 1000.101).



Sec. 1000.83  Can additional provisions be included in an AFA?

    Yes, any provision that the parties mutually agreed upon may be 
included in an AFA.



Sec. 1000.84  Does a Tribe/Consortium have the right to include provisions 
of Title I of Pub. L. 93-638 in an AFA?

    Yes, under Pub. L. 104-109, a Tribe/Consortium has the right to 
include any provision of Title I of Pub. L. 93-638 in an AFA.



Sec. 1000.85  Can a Tribe/Consortium negotiate an AFA with a term that 
exceeds one year?

    Yes, at the option of the Tribe/Consortium, and subject to the 
availability of Congressional appropriations, a Tribe/Consortium may 
negotiate an

[[Page 1066]]

AFA with a term that exceeds one year in accordance with section 
105(c)(1) of Title I of Pub. L. 93-638.

           Determining What Programs May Be Included in an AFA



Sec. 1000.86  What types of programs may be included in an AFA?

    A Tribe/Consortium may include in its AFA programs administered by 
BIA, without regard to the BIA agency or office that administers the 
program, including any program identified in section 403(b)(1) of the 
Act.



Sec. 1000.87  How does the AFA specify the services provided, functions 

performed, and responsibilities assumed by the Tribe/Consortium and those 
retained by the Secretary?

    (a) The AFA must specify in writing the services, functions, and 
responsibilities to be assumed by the Tribe/Consortium and the 
functions, services, and responsibilities to be retained by the 
Secretary.
    (b) Any division of responsibilities between the Tribe/Consortium 
and BIA should be clearly stated in writing as part of the AFA. 
Similarly, when there is a relationship between the program and BIA's 
residual responsibility, the relationship should be in writing.



Sec. 1000.88  Do Tribes/Consortia need Secretarial approval to redesign 
BIA programs that the Tribe/Consortium administers under an AFA?

    No, the Secretary does not have to approve a redesign of a program 
under the AFA, except when the redesign involves a waiver of a 
regulation.
    (a) The Secretary must approve any waiver, in accordance with 
subpart J of this part, before redesign takes place.
    (b) This section does not authorize redesign of programs where other 
prohibitions exist.
    (c) Redesign shall not result in the Tribe/Consortium being entitled 
to receive more or less funding for the program from BIA.
    (d) Redesign of construction project(s) included in an AFA must be 
done in accordance with subpart K of this part.



Sec. 1000.89  Can the terms and conditions in an AFA be amended during 
the year it is in effect?

    Yes, terms and conditions in an AFA may be amended during the year 
it is in effect as agreed to by both the Tribe/Consortium and the 
Secretary.



Sec. 1000.90  What happens if an AFA expires before the effective date 
of the successor AFA?

    If the effective date of the successor AFA is not on or before the 
expiration of the current AFA, subject to terms mutually agreed upon by 
the Tribe/Consortium and the Department at the time the current AFA was 
negotiated or in a subsequent amendment, the Tribe/Consortium may 
continue to carry out the program authorized under the AFA to the extent 
adequate resources are available. During this extension period, the 
current AFA shall remain in effect, including coverage of the Tribe/
Consortium under the Federal Tort Claims Act (FTCA) 28 U.S.C. 2671-2680 
(1994), and the Tribe/Consortium may use any funds remaining under the 
AFA, savings from other programs or Tribal funds to carry out the 
program. Nothing in this section authorizes an AFA to be continued 
beyond the completion of the program authorized under the AFA or the 
amended AFA. This section also does not entitle a Tribe/Consortium to 
receive, nor does it prevent a Tribe from receiving, additional funding 
under any successor AFA. The successor AFA must provide funding to the 
Tribe/Consortium at a level necessary for the Tribe/Consortium to 
perform the programs, functions, services, and activities or portions 
thereof (PFSAs) for the full period it was or will be performed.

                         Determining AFA Amounts



Sec. 1000.91  What funds must be transferred to a Tribe/Consortium 
under an AFA?

    (a) At the option of the Tribe/Consortium, the Secretary must 
provide the following program funds to the Tribe/Consortium through an 
AFA:
    (1) An amount equal to the amount that the Tribe/Consortium would 
have been eligible to receive under contracts and grants for direct 
programs and

[[Page 1067]]

contract support under Title I of Pub. L. 93-638, as amended;
    (2) Any funds that are specifically or functionally related to 
providing services and benefits to the Tribe/Consortium or its members 
by the Secretary without regard to the organizational level within BIA 
where such functions are carried out; and
    (3) Any funds otherwise available to Indian Tribes or Indians for 
which appropriations are made to agencies other than the Department of 
the Interior;
    (b) Examples of the funds referred to in paragraphs (a)(1) and 
(a)(2) of this section are:
    (1) A Tribe's/Consortium's Pub. L. 93-638 contract amounts;
    (2) Negotiated amounts of agency, regional and central office funds, 
including previously undistributed funds or new programs on the same 
basis as they are made available to other Tribes;
    (3) Other recurring funding;
    (4) Non-recurring funding;
    (5) Special projects, if applicable;
    (6) Construction;
    (7) Wildland firefighting accounts;
    (8) Competitive grants; and
    (9) Congressional earmarked funding.
    (c) An example of the funds referred to in paragraph (a)(3) of this 
section is Federal Highway Administration funds.



Sec. 1000.92  What funds may not be included in an AFA?

    Funds associated with programs prohibited from inclusion under 
section 403(b)(4) of the Act may not be included in an AFA.



Sec. 1000.93  May the Secretary place any requirements on programs and 

funds that are otherwise available to Tribes/Consortia or Indians for 
which appropriations are made to agencies other than DOI?

    No, unless the Secretary is required to develop terms and conditions 
that are required by law or that are required by the agency to which the 
appropriation is made.



Sec. 1000.94  What are BIA residual funds?

    BIA residual funds are the funds necessary to carry out BIA residual 
functions. BIA residual functions are those functions that only BIA 
employees could perform if all Tribes were to assume responsibilities 
for all BIA programs that the Act permits.



Sec. 1000.95  How is BIA's residual determined?

    (a) Generally, residual information will be determined through a 
process that is consistent with the overall process used by the BIA. 
Residual information will consist of residual functions performed by the 
BIA, brief justification why the function is not compactible, and the 
estimated funding level for each residual function. Each regional office 
and the central office will compile a single document for distribution 
each year that contains all the residual information of that respective 
office. The development of the residual information will be based on the 
following principles. The BIA will:
    (1) Develop uniform residual information to be used to negotiate 
residuals;
    (2) Ensure functional consistency throughout BIA in the 
determination of residuals;
    (3) Make the determination of residuals based upon the functions 
actually being performed by BIA at the respective office;
    (4) Annually consult with Tribes on a region-by-region basis as 
requested by Tribes/Consortia; and
    (5) Notify Tribal leaders each year by March 1 of the availability 
of residual information.
    (b) BIA shall use the residual information determined under 
subparagraph (a) as the basis for negotiating with individual Tribes.
    (c) In accordance with the appeals procedures in subpart R of this 
part, if BIA and a participating Tribe/Consortium disagree over the 
content of residual functions or amounts, Tribe/Consortium can appeal as 
shown in the following table.

------------------------------------------------------------------------
                              the Tribe/Consortium
 If a Tribe/Consortium . . .        may . . .             and . . .
------------------------------------------------------------------------
(1) Disagrees with BIA's      appeal to the Deputy  the Deputy
 determination.                Commissioner.         Commissioner must
                                                     make a written
                                                     determination
                                                     within 30 days of
                                                     receiving the
                                                     request.

[[Page 1068]]

 
(2) Disagrees with the        appeal to the         the Assistant
 Deputy Commissioner's         Assistant             Secretary's
 determination.                Secretary--Indian     determination is
                               Affairs.              final for the
                                                     Department.
------------------------------------------------------------------------

    (d) Information on residual functions may be amended if programs are 
added or deleted, if statutory or final judicial determinations mandate 
or if the Deputy Commissioner makes a determination that would alter the 
residual information or funding amounts. The decision may be appealed to 
the Assistant Secretary in accordance with subpart R of this part. The 
Assistant Secretary shall make a written determination within 30 days.



Sec. 1000.96  May a Tribe/Consortium continue to negotiate an AFA 
pending an appeal of residual functions or amounts?

    Yes, pending appeal of a residual function or amount, any Tribe/
Consortium may continue to negotiate an AFA using the residual 
information that is being appealed. The residual information will be 
subject to later adjustment based on the final determination of a 
Tribe's/Consortium's appeal.



Sec. 1000.97  What is a Tribal share?

    A Tribal share is the amount determined for a particular Tribe/
Consortium for a particular program at BIA regional, agency and central 
office levels under section 403(g)(3) and 405(d) of the Act.



Sec. 1000.98  How does BIA determine a Tribe's/Consortium's share of 
funds to be included in an AFA?

    There are typically two methods for determining the amount of funds 
to be included in the AFA:
    (a) Formula-driven. For formula-driven programs, a Tribe's/
Consortium's amount is determined by first identifying the residual 
funds to be retained by BIA and second, by applying the distribution 
formula to the remaining eligible funding for each program involved.
    (1) Distribution formulas must be reasonably related to the function 
or service performed by an office, and must be consistently applied to 
all Tribes within each regional and agency office.
    (2) The process in paragraph (a) of this section for calculating a 
Tribe's funding under self-governance must be consistent with the 
process used for calculating funds available to non-self-governance 
Tribes.
    (b) Tribal-specific. For programs whose funds are not distributed on 
a formula basis as described in paragraph (a) of this section, a Tribe's 
funding amount will be determined on a Tribe-by-Tribe basis and may 
differ between Tribes. Examples of these funds may include special 
project funding, awarded competitive grants, earmarked funding, and 
construction or other one-time or non-recurring funding for which a 
Tribe is eligible.



Sec. 1000.99  Can a Tribe/Consortium negotiate a Tribal share for 
programs outside its region/agency?

    Yes, where BIA services for a particular Tribe/Consortium are 
provided from a location outside its immediate agency or region, the 
Tribe may negotiate its share from BIA location where the service is 
actually provided.



Sec. 1000.100  May a Tribe/Consortium obtain discretionary or competitive 
funding that is distributed on a discretionary or competitive basis?

    Funds provided for Indian services/programs that have not been 
mandated by Congress to be distributed on a competitive/discretionary 
basis may be distributed to a Tribe/Consortium under a formula-driven 
method. In order to receive such funds, a Tribe/Consortium must be 
eligible and qualified to receive such funds. A Tribe/Consortium that 
receives such funds under a formula-driven methodology would no longer 
be eligible to compete for these funds.



Sec. 1000.101  Are all funds identified as Tribal shares always paid to 
the Tribe/Consortium under an AFA?

    No, at the discretion of the Tribe/Consortium, Tribal shares may be 
left,

[[Page 1069]]

in whole or in part, with BIA for certain programs. This is referred to 
as a ``retained Tribal share''.



Sec. 1000.102  How are savings that result from downsizing allocated?

    Funds that are saved as a result of downsizing in BIA are allocated 
to Tribes/Consortia in the same manner as Tribal shares as provided for 
in Sec. 1000.98.



Sec. 1000.103  Do Tribes/Consortia need Secretarial approval to reallocate 
funds between programs that the Tribe/Consortium administers under the AFA?

    No, unless otherwise required by law, the Secretary does not have to 
approve the reallocation of funds between programs that a Tribe/
Consortium administers under an AFA.



Sec. 1000.104  Can funding amounts negotiated in an AFA be adjusted during 
the year it is in effect?

    Yes, funding amounts negotiated in an AFA may be adjusted under the 
following circumstances:
    (a) Congressional action. (1) Increases/decreases as a result of 
Congressional appropriations and/or a directive in the statement of 
managers accompanying a conference report on an appropriations bill or 
continuing resolution.
    (2) General decreases due to Congressional action must be applied 
consistently to BIA, self-governance Tribes/Consortia, and Tribes/
Consortia not participating in self-governance.
    (3) General increases due to Congressional appropriations must be 
applied consistently, except where used to achieve equitable 
distribution among regions and Tribes.
    (4) A Tribe/Consortium will be notified of any decrease and be 
provided an opportunity to reconcile.
    (b) Mistakes. If the Tribe/Consortium or the Secretary can identify 
and document substantive errors in calculations, the parties will 
renegotiate the amounts and make every effort to correct such errors.
    (c) Mutual Agreement. Both the Tribe/Consortium and the Secretary 
may agree to renegotiate amounts at any time.

                Establishing Self-Governance Base Budgets



Sec. 1000.105  What are self-governance base budgets?

    (a) A Tribe/Consortium self-governance base budget is the amount of 
recurring funding identified in the President's annual budget request to 
Congress. This amount must be adjusted to reflect subsequent 
Congressional action. It includes amounts that are eligible to be base 
transferred or have been base transferred from BIA budget accounts to 
self-governance budget accounts. As allowed by Congress, self-governance 
base budgets are derived from:
    (1) A Tribe's/Consortium's Pub. L. 93-638 contract amounts;
    (2) Negotiated agency, regional, and central office amounts;
    (3) Other recurring funding;
    (4) Special projects, if applicable;
    (5) Programmatic shortfall;
    (6) Tribal priority allocation increases and decreases;
    (7) Pay costs and retirement cost adjustments; and
    (8) Any other inflationary cost adjustments.
    (b) Self-governance base budgets must not include any non-recurring 
program funds, construction and wildland firefighting accounts, 
Congressional earmarks, or other funds specifically excluded by 
Congress. These funds are negotiated annually and may be included in the 
AFA but must not be included in the self-governance base budget.
    (c) Self-governance base budgets may not include other recurring 
type programs that are currently in Tribal priority allocations (TPA) 
such as general assistance, housing improvement program (HIP), road 
maintenance and contract support. Should these later four programs ever 
become base transferred to Tribes, then they may be included in a self-
governance Tribe's base budget.



Sec. 1000.106  Once a Tribe/Consortium establishes a base budget, are 
funding amounts renegotiated each year?

    No, unless otherwise requested by the Tribe/Consortium, these 
amounts are not renegotiated each year. If a Tribe/

[[Page 1070]]

Consortium renegotiates funding levels:
    (a) It must negotiate all funding levels in the AFA using the 
process for determining residuals and funding amounts on the same basis 
as other Tribes; and
    (b) It is eligible for funding amounts of new programs or available 
programs not previously included in the AFA on the same basis as other 
Tribes.



Sec. 1000.107  Must a Tribe/Consortium with a base budget or base 

budget-eligible program amounts negotiated before January 16, 2001 
negotiate new Tribal shares and residual amounts?

    No, if a Tribe/Consortium negotiated amounts before January 16, 
2001, it does not need to renegotiate new Tribal shares and residual 
amounts.
    (a) At Tribal option, a Tribe/Consortium may retain funding amounts 
that:
    (1) Were either base eligible or in the Tribe's base; and
    (2) Were negotiated before this part is promulgated.
    (b) If a Tribe/Consortium desires to renegotiate the amounts 
referred to in paragraph (a) of this section, the Tribe/Consortium must:
    (1) Negotiate all funding included in the AFA; and
    (2) Use the process for determining residuals and funding amounts on 
the same basis as other Tribes.
    (c) Self-governance Tribes/Consortia are eligible for funding 
amounts for new or available programs not previously included in the AFA 
on the same basis as other Tribes/Consortia.



Sec. 1000.108  How are self-governance base budgets established?

    At the request of the Tribe/Consortium, a self-governance base 
budget identifying each Tribe's funding amount is included in BIA's 
budget justification for the following year, subject to Congressional 
appropriation.



Sec. 1000.109  How are self-governance base budgets adjusted?

    Self-governance base budgets must be adjusted as follows:
    (a) Congressional action. (1) Increases/decreases as a result of 
Congressional appropriations and/or a directive in the statement of 
managers accompanying a conference report on an appropriations bill or 
continuing resolution.
    (2) General decreases due to Congressional action must be applied 
consistently to BIA, self-governance Tribes/Consortia, and Tribes/
Consortia not participating in self-governance.
    (3) General increases due to Congressional appropriations must be 
applied consistently, except where used to achieve equitable 
distribution among regions and Tribes.
    (4) A Tribe/Consortium will be notified of any decrease and be 
provided an opportunity to reconcile.
    (b) Mistakes. If the Tribe/Consortium or the Secretary can identify 
and document substantive errors in calculations, the parties will 
renegotiate such amounts and make every effort to correct the errors.
    (c) Mutual agreement. Both the Tribe/Consortium and the Secretary 
may agree to renegotiate amounts at any time.



Subpart F_Non-BIA Annual Self-Governance Compacts and Funding Agreements

                                 Purpose



Sec. 1000.120  What is the purpose of this subpart?

    This subpart describes program eligibility, funding, terms, and 
conditions of AFAs for non-BIA programs.



Sec. 1000.121  What is an annual funding agreement for a non-BIA program?

    Annual funding agreements for non-BIA programs are legally binding 
and mutually enforceable agreements between a bureau and a Tribe/
Consortium participating in the self-governance program that contain:
    (a) A description of that portion or portions of a bureau program 
that are to be performed by the Tribe/Consortium; and
    (b) Associated funding, terms and conditions under which the Tribe/
Consortium will assume a program, or portion of a program.

[[Page 1071]]

                               Eligibility



Sec. 1000.122  What non-BIA programs are eligible for inclusion in an 
annual funding agreement?

    Programs authorized by sections 403(b)(2) and 403(c) of the Act are 
eligible for inclusion in AFAs. The Secretary will publish annually a 
list of these programs in accordance with section 405(c)(4).



Sec. 1000.123  Are there non-BIA programs for which the Secretary must 

negotiate for inclusion in an AFA subject to such terms as the parties 
may negotiate?

    Yes, those programs, or portions thereof, that are eligible for 
contracting under Pub. L. 93-638.



Sec. 1000.124  What programs are included under Section 403(b)(2) of 
the Act?

    Those programs, or portions thereof, that are eligible for 
contracting under Pub. L. 93-638.



Sec. 1000.125  What programs are included under Section 403(c)?

    Department of the Interior programs of special geographic, 
historical, or cultural significance to participating Tribes, 
individually or as members of a Consortium, are eligible for inclusion 
in AFAs under section 403(c).



Sec. 1000.126  What does ``special geographic, historical or cultural'' 
mean?

    (a) Geographic generally refers to all lands presently ``on or 
near'' an Indian reservation, and all other lands within ``Indian 
country,'' as defined by 18 U.S.C. 1151. In addition, ``geographic'' 
includes:
    (1) Lands of former reservations;
    (2) Lands on or near those conveyed or to be conveyed under the 
Alaska Native Claims Settlement Act (ANCSA);
    (3) Judicially established aboriginal lands of a Tribe or a 
Consortium member or as verified by the Secretary; and
    (4) Lands and waters pertaining to Indian rights in natural 
resources, hunting, fishing, gathering, and subsistence activities, 
provided or protected by treaty or other applicable law.
    (b) Historical generally refers to programs or lands having a 
particular history that is relevant to the Tribe. For example, 
particular trails, forts, significant sites, or educational activities 
that relate to the history of a particular Tribe.
    (c) Cultural refers to programs, sites, or activities as defined by 
individual Tribal traditions and may include, for example:
    (1) Sacred and medicinal sites;
    (2) Gathering of medicines or materials such as grasses for basket 
weaving; or
    (3) Other traditional activities, including, but not limited to, 
subsistence hunting, fishing, and gathering.



Sec. 1000.127  Under Section 403(b)(2), when must programs be awarded 
non-competitively?

    Programs eligible for contracts under Pub. L. 93-638 must be awarded 
non-competitively.



Sec. 1000.128  Is there a contracting preference for programs of special 
geographic, historical, or cultural significance?

    Yes, if there is a special geographic, historical, or cultural 
significance to the program or activity administered by the bureau, the 
law affords the bureau the discretion to include the programs or 
activities in an AFA on a non-competitive basis.



Sec. 1000.129  Are there any programs that may not be included in an AFA?

    Yes, section 403(k) of the Act excludes from the program:
    (a) Inherently Federal functions; and
    (b) Programs where the statute establishing the existing program 
does not authorize the type of participation sought by the Tribe/
Consortium, except as provided in Sec. 1000.134.



Sec. 1000.130  Does a Tribe/Consortium need to be identified in an 

authorizing statute in order for a program or element of a program 
to be included in a non-BIA AFA?

    No, the Act favors the inclusion of a wide range of programs.

[[Page 1072]]



Sec. 1000.131  Will Tribes/Consortia participate in the Secretary's 

determination of what is to be included on the annual list of available 
programs?

    Yes, the Secretary must consult each year with Tribes/Consortia 
participating in self-governance programs regarding which bureau 
programs are eligible for inclusion in AFAs.



Sec. 1000.132  How will the Secretary consult with Tribes/Consortia in 
developing the list of available programs?

    (a) On, or as near as possible to, October 1 of each year, the 
Secretary must distribute to each participating self-governance Tribe/
Consortium the previous year's list of available programs in accordance 
with section 405(c)(4) of the Act. The list must include:
    (1) All of the Secretary's proposed additions and revisions for the 
coming year with an explanation; and
    (2) Programmatic targets and an initial point of contact for each 
bureau.
    (b) The Tribes/Consortia receiving the proposed list will have 30 
days from receipt to comment in writing on the Secretary's proposed 
revisions and to provide additions and revisions of their own for the 
Secretary to consider.
    (c) The Secretary will carefully consider these comments before 
publishing the list as required by section 405(c)(4) of the Act.
    (d) If the Secretary does not plan to include a Tribal suggestion or 
revision in the final published list, he/she must provide an explanation 
of his/her reasons if requested by a Tribe.



Sec. 1000.133  What else is on the list in addition to eligible programs?

    The list will also include programmatic targets and an initial point 
of contact for each bureau. Programmatic targets will be established as 
part of the consultation process described in Sec. 1000.132.



Sec. 1000.134  May a bureau negotiate with a Tribe/Consortium for 
programs not specifically included on the annual section 405(c) list?

    Yes, the annual list will specify that bureaus will negotiate for 
other programs eligible under section 403(b)(2) when requested by a 
Tribe/Consortium. Bureaus may negotiate for section 403(c) programs 
whether or not they are on the list.



Sec. 1000.135  How will a bureau negotiate an annual funding agreement 

for a program of special geographic, historical, or cultural significance 
to more than one Tribe?

    (a) If a program is of special geographic, historical, or cultural 
significance to more than one Tribe, the bureau may allocate the program 
among the several Tribes/Consortia or select one Tribe/Consortium with 
whom to negotiate an AFA.
    (b) In making a determination under paragraph (a) of this section, 
the bureau will, in consultation with the affected Tribes, consider:
    (1) The special significance of each Tribe's or Consortium member's 
interest; and
    (2) The statutory objectives being served by the bureau program.
    (c) The bureau's decision will be final for the Department.



Sec. 1000.136  When will this determination be made?

    It will occur during the pre-negotiation process, subject to the 
timeframes in Sec. 1000.171 and Sec. 1000.172.

                                 Funding



Sec. 1000.137  What funds are included in an AFA?

    Bureaus determine the amount of funding to be included in the AFA 
using the following principles:
    (a) 403(b)(2) programs. In general, funds are provided in an AFA to 
the Tribe/Consortium in an amount equal to the amount that it is 
eligible to receive under section 106 of Pub. L. 93-638.
    (b) 403(c) programs. (1) The AFA will include:
    (i) Amounts equal to the direct costs the bureau would have incurred 
were it to operate that program at the level of work mutually agreed to 
in the AFA; and
    (ii) Allowable indirect costs.
    (2) A bureau is not required to include management and support funds 
from the regional or central office level in an AFA, unless:

[[Page 1073]]

    (i) The Tribe/Consortium will perform work previously performed at 
the regional or central office level;
    (ii) The work is not compensated in the indirect cost rate; and
    (iii) Including management and support costs in the AFA does not 
result in the Tribe/Consortium being paid twice for the same work when 
negotiated indirect cost rate is applied.
    (c) Funding Limitations. The amount of funding must be subject to 
the availability and level of Congressional appropriations to the bureau 
for that program or activity. As the various bureaus use somewhat 
differing budgeting practices, determining the amount of funds available 
for inclusion in the AFA for a particular program or activity is likely 
to vary among bureaus or programs.
    (1) The AFA may not exceed the amount of funding the bureau would 
have spent for direct operations and indirect support and management of 
that program in that year.
    (2) The AFA must not include funding for programs still performed by 
the bureau.



Sec. 1000.138  How are indirect cost rates determined?

    The Department's Office of the Inspector General (OIG) or other 
cognizant Federal agency and the Tribe/Consortium negotiate indirect 
cost rates. These rates are based on the provisions of the Office of 
Management and Budget (OMB) Circular A-87 or other applicable OMB cost 
circular and the provisions of Title I of Pub. L. 93-638 (See Sec. 
1000.142). These rates are used generally by all Federal agencies for 
contracts and grants with the Tribe/Consortium, including self-
governance agreements.



Sec. 1000.139  Will the established indirect cost rates always apply to 
new AFAs?

    No, the established indirect cost rates will not always apply to new 
AFAs.
    (a) A Tribe's/Consortium's existing indirect cost rate should be 
reviewed and renegotiated with the inspector general or other cognizant 
agency if:
    (1) Using the previously negotiated rate would include the recovery 
of indirect costs that are not reasonable, allocable, or allowable to 
the relevant program; or
    (2) The previously negotiated rate would result in an under-recovery 
by the Tribe/Consortium.
    (b) If a Tribe/Consortium has a fixed amount indirect cost agreement 
under OMB Circular A-87, then:
    (1) Renegotiation is not required and the duration of the fixed 
amount agreement will be that provided for in the fixed amount 
agreement; or
    (2) The Tribe/Consortium and bureau may negotiate an indirect cost 
amount or rate for use only in that AFA without the involvement of the 
inspector general or other cognizant agency.



Sec. 1000.140  How does the Secretary determine the amount of indirect 
contract support costs?

    The Secretary determines the amount of indirect contract support 
costs by:
    (a) Applying the negotiated indirect cost rate to the appropriate 
direct cost base;
    (b) Using the provisional rate; or
    (c) Negotiating the amount of indirect contract support.



Sec. 1000.141  Is there a predetermined cap or limit on indirect cost 
rates or a fixed formula for calculating indirect cost rates?

    No, indirect cost rates vary from Tribe to Tribe. The Secretary 
should refer to the appropriate negotiated indirect cost rates for 
individual Tribes, that apply government-wide. Although this cost rate 
is not capped, the amount of funds available for inclusion is capped at 
the level available under the relevant appropriation.



Sec. 1000.142  Instead of the negotiated indirect cost rate, is it 

possible to establish a fixed amount or another negotiated rate for 
indirect costs where funds are limited?

    Yes, OMB Circular A-87 encourages agencies to test fee-for-service 
alternatives. If the parties agree to a fixed price, fee-for-service 
agreement, then they must use OMB Circular A-87 as a guide in 
determining the appropriate price (OMB circulars are available at http:/
/www.whitehouse.gov/omb/ or see

[[Page 1074]]

5 CFR 1310.3).Where limited appropriated funds are available, 
negotiating the fixed cost option or another rate may facilitate 
reaching an agreement with that Tribe/Consortium.

                       Other Terms and Conditions



Sec. 1000.143  May the bureaus negotiate terms to be included in 
an AFA for non-Indian programs?

    Yes, as provided for by section 403(b)(2) and 403(c) and as 
necessary to meet program mandates.

                 Reallocation, Duration, and Amendments



Sec. 1000.144  Can a Tribe reallocate funds for a non-BIA non-Indian 
program?

    Yes, section 403(b) permits such reallocation upon joint agreement 
of the Secretary and the Tribe/Consortium.



Sec. 1000.145  Do Tribes/Consortia need Secretarial approval to reallocate 

funds between Title-I eligible programs that the Tribe/Consortium administers 
under a non-BIA AFA?

    No, unless otherwise required by law, the Secretary does not have to 
approve the reallocation of funds with the exception of construction 
projects.



Sec. 1000.146  Can a Tribe/Consortium negotiate an AFA with a non-BIA 
bureau for which the performance period exceeds one year?

    Yes, subject to the terms of the AFA, a Tribe/Consortium and a non-
BIA bureau may agree to provide for the performance under the AFA to 
extend beyond the fiscal year. However, the Department may not obligate 
funds in excess and advance of available appropriations.



Sec. 1000.147  Can the terms and conditions in a non-BIA AFA be amended 
during the year it is in effect?

    Yes, terms and conditions in a non-BIA AFA may be amended during the 
year it is in effect as agreed to by both the Tribe/Consortium and the 
Secretary.



Sec. 1000.148  What happens if an AFA expires before the effective date 
of the successor AFA?

    If the effective date of a successor AFA is not on or before the 
expiration of the current AFA, subject to terms mutually agreed upon by 
the Tribe/Consortium and the Department at the time the current AFA was 
negotiated or in a subsequent amendment, the Tribe/Consortium may 
continue to carry out the program authorized under the AFA to the extent 
resources permit. During this extension period, the current AFA shall 
remain in effect, including coverage of the Tribe/Consortium under the 
Federal Tort Claims Act (FTCA) 28 U.S.C. 2671-2680 (1994); and the 
Tribe/Consortium may use any funds remaining under the AFA, savings from 
other programs or Tribal funds to carry out the program. Nothing in this 
section authorizes an AFA to be continued beyond the completion of the 
program authorized under the AFA or the amended AFA. This section also 
does not entitle a Tribe/Consortium to receive, nor does it prevent a 
Tribe from receiving, additional funding under any successor AFA. The 
successor AFA must provide funding to the Tribe/Consortium at a level 
necessary for the Tribe/Consortium to perform the programs, functions, 
services, and activities (PFSA) or portions thereof for the full period 
they were or will be performed.



       Subpart G_Negotiation Process for Annual Funding Agreements

                                 Purpose



Sec. 1000.160  What is the purpose of this subpart?

    This subpart provides the process and timelines for negotiating a 
self-governance compact with the Department and an AFA with any bureau.
    (a) For a newly selected or currently participating Tribe/Consortium 
negotiating an initial AFA with any bureau, see Sec. Sec. 1000.173 
through 1000.179.
    (b) For a participating Tribe/Consortium negotiating a successor AFA 
with any bureau, see Sec. Sec. 1000.180 through 1000.182.

[[Page 1075]]

                  Negotiating a Self-Governance Compact



Sec. 1000.161  What is a self-governance compact?

    A self-governance compact is an executed document that affirms the 
government-to-government relationship between a self-governance Tribe 
and the United States. The compact differs from an AFA in that parts of 
the compact apply to all bureaus within the Department of the Interior 
rather than a single bureau.



Sec. 1000.162  What is included in a self-governance compact?

    A model format for self-governance compacts appears in appendix A. A 
self-governance compact should generally include the following:
    (a) The authority and purpose;
    (b) Terms, provisions, and conditions of the compact;
    (c) Obligations of the Tribe and the United States; and
    (d) Other provisions.



Sec. 1000.163  Can a Tribe/Consortium negotiate other terms and conditions 
not contained in the model compact?

    Yes, the Secretary and a self-governance Tribe/Consortium may 
negotiate into the model compact contained in appendix A additional 
terms relating to the government-to-government relationship between the 
Tribe(s) and the United States. For BIA programs, a Tribe/Consortium and 
the Secretary may agree to include any term in a contract and funding 
agreement under Title I in the model compact contained in appendix A to 
this part.



Sec. 1000.164  Can a Tribe/Consortium have an AFA without entering into 
a compact?

    Yes, at the Tribe's/Consortium's option.



Sec. 1000.165  Are provisions in compacts negotiated before 
January 16, 2001, effective after implementation?

    (a) Yes, all provisions in compacts that were negotiated with BIA 
before January 16, 2001, shall remain in effect for BIA programs only 
after January 16, 2001, provided that each compact contains provisions:
    (1) That are authorized by the Tribal Self-Governance Act of 1994;
    (2) Are in compliance with other applicable Federal laws; and,
    (3) Are consistent with this part.
    (b) BIA will notify the Tribe/Consortium in writing when BIA asserts 
that a provision or provisions of that Tribe's/Consortium's previously 
negotiated compact is not in compliance with the terms and conditions of 
this part. BIA and the Tribe/Consortium will renegotiate the provision 
within 60 days of the Tribe's/Consortium's receipt of the notification.
    (c) If renegotiation is not successful within 60 days of the notice 
being provided, BIA's determination is final for the bureau and 
enforceability of the provisions shall be subject to the appeals process 
described in subpart R of this part. Pending a final appeal through the 
appeals process, BIA's determination shall be stayed.

            Negotiation of Initial Annual Funding Agreements



Sec. 1000.166  What are the phases of the negotiation process?

    There are two phases of the negotiation process:
    (a) The information phase; and
    (b) The negotiation phase.



Sec. 1000.167  Who may initiate the information phase?

    Any Tribe/Consortium that has been admitted to the program or to the 
applicant pool may initiate the information phase.



Sec. 1000.168  Is it mandatory to go through the information phase 
before initiating the negotiation phase?

    No, a Tribe/Consortium may go directly to the negotiation phase.



Sec. 1000.169  How does a Tribe/Consortium initiate the information phase?

    A Tribe/Consortium initiates the information phase by submitting a 
letter of interest to the bureau administering a program that the Tribe/
Consortium may want to include in its AFA. A letter of interest may be 
mailed, telefaxed, or hand-delivered to:

[[Page 1076]]

    (a) The Director, OSG, if the request is for information about BIA 
programs;
    (b) The non-BIA bureau's self-governance representative identified 
in the Secretary's annual section 405(c) listing in the Federal 
Register, if the request is for information concerning programs of non-
BIA bureaus.



Sec. 1000.170  What is the letter of interest?

    A letter of interest is the initial indication of interest submitted 
by the Tribe/Consortium informing the bureau of the Tribe's/Consortium's 
interest in seeking information for the possible negotiation of one or 
more bureau programs. For non-BIA bureaus, the program and budget 
information request should relate to the program and activities 
identified in the Secretary's section 405(c) list in the Federal 
Register or a section 403(c) request. A letter of interest should 
identify the following:
    (a) As specifically as possible, the program a Tribe/Consortium is 
interested in negotiating under an AFA;
    (b) A preliminary brief explanation of the cultural, historical, or 
geographic significance to the Tribe/Consortium of the program, if 
applicable;
    (c) The scope of activity that a Tribe/Consortium is interested in 
including in an AFA;
    (d) Other information that may assist the bureau in identifying the 
programs that are included or related to the Tribe's/Consortium's 
request;
    (e) A request for information that indicates the type and/or 
description of information that will assist the Tribe/Consortium in 
pursuing the negotiation process;
    (f) A designated Tribal contact;
    (g) A request for information on any funds that may be available 
within the bureau or other known possible sources of funding for 
planning and negotiating an AFA;
    (h) A request for information on any funds available within the 
bureau or from other sources of funding that the Tribe/Consortium may 
include in the AFA for planning or performing programs or activities; 
and
    (i) Any requests for technical assistance to be provided by the 
bureau in preparing documents of materials that may be required for the 
Tribe/Consortium in the negotiation process.



Sec. 1000.171  When should a Tribe/Consortium submit a letter of interest?

    A letter of interest may be submitted at any time. To meet the 
negotiation deadlines below, letters should be submitted to the 
appropriate non-BIA bureaus by March 1; letters should be submitted to 
BIA by April 1 for fiscal year Tribes/Consortia or May 1 for calendar 
year Tribes/Consortia.



Sec. 1000.172  What steps does the bureau take after a letter of 
interest is submitted by a Tribe/Consortium?

    (a) Within 15 calendar days of receipt of a Tribe's/Consortium's 
letter of interest, the bureau will notify the Tribe/Consortium about 
who will be designated as the bureau's representative to be responsible 
for responding to the Tribal requests for information. The bureau 
representative shall act in good faith in fulfilling the following 
responsibilities:
    (1) Providing all budget and program information identified in 
paragraph (b) of this section, from each organizational level of the 
bureau(s); and
    (2) Notifying any other bureau requiring notification and 
participation under this part.
    (b) Within 30 calendar days of receipt of the Tribe's/Consortium's 
letter of interest:
    (1) To the extent that such reasonably related information is 
available, the bureau representative is to provide the information 
listed in paragraph (c) of this section, if available and consistent 
with the bureau's budgetary process;
    (2) A written explanation of why the information is not available or 
not being provided to the Tribe's/Consortium's contact and the date by 
which other available information will be provided; or
    (3) If applicable, a written explanation of why the program is 
unavailable for negotiation.
    (c) Information to be made available to the Tribe's/Consortium's 
contact, subject to the conditions of paragraph (b) of this section, 
includes:
    (1) Information regarding program, budget, staffing, and locations 
of the

[[Page 1077]]

offices administering the program and related administrative support 
program identified by the Tribe/Consortium,
    (2) Information contained in the previous year, present year, and 
next year's budget proposed by the President at the national program 
level and the regional/local level.
    (3) When appropriate, the bureau will be available to meet the 
Tribal representatives to explain the budget information provided.
    (4) Information used to support budget allocations for the programs 
identified (e.g., full time equivalents and other relevant factors).
    (5) Information used to operate and/or evaluate a program, such as 
statutory and regulatory requirements and program standards.
    (6) If applicable, information regarding how a program is 
administered by more than one bureau, including a point of contact for 
information for the other bureau(s); and
    (7) Other information requested by the Tribe/Consortium in its 
letter of interest.
    (d) If a bureau fails to provide reasonably related information 
requested by a Tribe/Consortium, the Tribe/Consortium may appeal the 
failure in accordance with subpart R of this part. These requests shall 
be considered for a fee waiver under the Freedom of Information Act.



Sec. 1000.173  How does a newly selected Tribe/Consortium initiate 
the negotiation phase?

    (a) To initiate the negotiation phase, an authorized official of the 
newly selected Tribe/Consortium submits a written request to negotiate 
an AFA as indicated in the following table:

------------------------------------------------------------------------
                              the Tribe/Consortium     and the request
         For a . . .            should submit the    should identify . .
                                request to . . .              .
------------------------------------------------------------------------
(1) BIA program.............  the Director, OSG...  the lead
                                                     negotiator(s) for
                                                     the Tribe/
                                                     Consortium.
(2) Non-BIA program.........  the bureau            the lead
                               representative        negotiator(s) for
                               designated to         the Tribe/
                               respond to the        Consortium and the
                               Tribe's/              specific program(s)
                               Consortium's          that the Tribe/
                               request for           Consortium seeks to
                               information.          negotiate.
------------------------------------------------------------------------

    (b) The Tribal/Consortium official must submit the information 
required by paragraph (a) of this section by the deadline shown in the 
following table:

------------------------------------------------------------------------
                                    Type of tribe/         Submission
        Type of program               consortium            deadline
------------------------------------------------------------------------
(1) BIA.......................  Fiscal year...........  April 1.
(2) BIA.......................  Calendar year.........  May 1.
(3) Non-BIA...................  Fiscal year or          May 1*.
                                 calendar year.
------------------------------------------------------------------------
* The request may be submitted later than this date where the bureau and
  the Tribe/Consortium agree that administration for a partial year
  funding agreement is feasible.



Sec. 1000.174  How and when does the bureau respond to a request to 
negotiate?

    (a) Within 15 days of receiving a Tribe's/Consortium's request to 
negotiate, the bureau will take the steps in this section. If more than 
one bureau is involved, a lead bureau must be designated to conduct 
negotiations.
    (b) If the program is contained on the section 405(c) list, the 
bureau will identify the lead negotiator(s) and awarding official(s) for 
executing the AFA.
    (c) If the program is potentially of a special geographic, cultural, 
or historic significance to a Tribe/Consortium, the bureau will schedule 
a pre-negotiation meeting with the Tribe/Consortium as soon as possible. 
The purpose of the meeting is to assist the bureau in determining if the 
program is available for negotiation.
    (d) Within 10 days after convening a meeting under paragraph (c) of 
this section:
    (1) If the program is available for negotiation, the bureau will 
identify the lead negotiator(s) and awarding official(s); or
    (2) If the program is unavailable for negotiation, the bureau will 
give to the Tribe/Consortium a written explanation of why the program is 
unavailable for negotiation.

[[Page 1078]]



Sec. 1000.175  What is the process for conducting the negotiation phase?

    (a) Within 30 days of receiving a written request to negotiate, the 
bureau and the Tribe/Consortium will agree to a date to conduct an 
initial negotiation meeting. Subsequent meetings will be held with 
reasonable frequency at reasonable times.
    (b) Tribe/Consortium and bureau lead negotiators must:
    (1) Be authorized to negotiate on behalf of their government; and
    (2) Involve all necessary persons in the negotiation process.
    (c) Once negotiations have been successfully completed, the bureau 
and Tribe/Consortium will prepare and either execute or disapprove an 
AFA within 30 days or by a mutually agreed upon date.



Sec. 1000.176  What issues must the bureau and the Tribe/Consortium 
address at negotiation meetings?

    The negotiation meetings referred to in Sec. 1000.175 must address 
at a minimum the following:
    (a) The specific Tribe/Consortium proposal(s) and intentions;
    (b) Legal or program issues that the bureau or the Tribe/Consortium 
identify as concerns;
    (c) Options for negotiating programs and related budget amounts, 
including mutually agreeable options for developing alternative formats 
for presenting budget information to the Tribe/Consortium;
    (d) Dates for conducting and concluding negotiations;
    (e) Protocols for conducting negotiations;
    (f) Responsibility for preparation of a written summary of the 
discussions; and
    (g) Who will prepare an initial draft of the AFA.



Sec. 1000.177  What happens when the AFA is signed?

    (a) After all parties have signed the AFA, a copy is sent to the 
Tribe/Consortium.
    (b) The Secretary forwards copies of the AFA to:
    (1) The House Subcommittee on Native Americans and Insular Affairs; 
and
    (2) The Senate Committee on Indian Affairs;
    (c) For BIA programs, the AFA is also forwarded to each Indian 
Tribe/Consortium served by the BIA Agency that serves any Tribe/
Consortium that is a party to the AFA.



Sec. 1000.178  When does the AFA become effective?

    The effective date is not earlier than 90 days after the AFA is 
submitted to the Congressional committees under Sec. 1000.177(b).



Sec. 1000.179  What happens if the Tribe/Consortium and bureau negotiators 
fail to reach an agreement?

    (a) If the Tribe/Consortium and bureau representatives do not reach 
agreement during the negotiation phase by the mutually agreed to date 
for completing negotiations, the Tribe/Consortium and the bureau may 
each make a last and best offer to the other party.
    (b) If a last and best offer is not accepted within 15 days, the 
bureau will provide a written explanation to the Tribe/Consortium 
explaining its reasons for not entering into an AFA for the requested 
program, together with the applicable statement prescribed in subpart R 
of this part, concerning appeal or review rights.
    (c) The Tribe/Consortium has 30 days from receipt of the bureau's 
written explanation to file an appeal. Appeals are handled in accordance 
with subpart R of this part.

       Negotiation Process for Successor Annual Funding Agreements



Sec. 1000.180  What is a successor AFA?

    A successor AFA is a funding agreement negotiated after a Tribe's/
Consortium's initial agreement with a bureau for continuing to perform a 
particular program. The parties to the AFA should generally use the 
terms of the existing AFA to expedite and simplify the exchange of 
information and the negotiation process.



Sec. 1000.181  How does the Tribe/Consortium initiate the negotiation 
of a successor AFA?

    Although a written request is desirable to document the precise 
request

[[Page 1079]]

and date of the request, a written request is not mandatory. If either 
party anticipates a significant change in an existing program in the 
AFA, it should notify the other party of the change at the earliest 
possible date so that the other party may plan accordingly.



Sec. 1000.182  What is the process for negotiating a successor AFA?

    The Tribe/Consortium and the bureau use the procedures in Sec. Sec. 
1000.173--1000.179.



 Subpart H_Limitation and/or Reduction of BIA Services, Contracts, and 
                                  Funds



Sec. 1000.190  What is the purpose of this subpart?

    This subpart prescribes the process that the Secretary uses to 
determine whether a BIA self-governance funding agreement causes a 
limitation or reduction in the services, contracts, or funds that any 
other Tribe/Consortium or Tribal organization is eligible to receive 
under self-determination contracts, other self-governance compacts, or 
direct services from BIA. This type of limitation is prohibited by 
section 406(a) of Pub. L. 93-638. For the purposes of this subpart, 
Tribal organization means an organization eligible to receive services, 
contracts, or funds under section 102 of Pub. L. 93-638.



Sec. 1000.191  To whom does this subpart apply?

    Participating and non-participating Tribes/Consortia and Tribal 
organizations are subject to this subpart. It does not apply to the 
general public and non-Indians.



Sec. 1000.192  What services, contracts, or funds are protected under 
section 406(a)?

    Section 406(a) protects against the actual reduction or limitations 
of services, contracts, or funds.



Sec. 1000.193  Who may raise the issue of limitation or reduction of 
services, contracts, or funding?

    BIA or any affected Tribe/Consortium or Tribal organization may 
raise the issue that a BIA self-governance AFA limits or reduces 
particular services, contracts, or funding for which it is eligible.



Sec. 1000.194  When must BIA raise the issue of limitation or reduction 
of services, contracts, or funding?

    (a) From the beginning of the negotiation period until the end of 
the first year of implementation of an AFA, BIA may raise the issue of 
limitation or reduction of services, contracts, or funding. If BIA and a 
participating Tribe/Consortium disagree over the residual information, a 
participating Tribe/Consortium may ask the Deputy Commissioner--Indian 
Affairs to reconsider residual levels for particular programs. [See 
Sec. 1000.95(d)]
    (b) After the AFA is signed, BIA must raise the issue of any 
undetermined funding amounts within 30 days after the final funding 
level is determined. BIA may not raise this issue after this period has 
elapsed.



Sec. 1000.195  When must an affected Tribe/Consortium or Tribal organization 

raise the issue of a limitation or reduction of services, contracts, or 
funding for which it is eligible?

    (a) A Tribe/Consortium or Tribal organization may raise the issue of 
limitation or reduction of services, contracts, or funding for which it 
is eligible during:
    (1) Region-wide Tribal shares meetings occurring before the first 
year of implementation of an AFA;
    (2) Within the 90-day review period before the effective date of the 
AFA; and
    (3) The first year of implementation of an AFA.
    (b) Any Tribe/Consortium or Tribal organization claiming a 
limitation or reduction of contracts, services, or funding for which it 
is eligible must notify, in writing, both the Department and negotiating 
Tribe/Consortium. Claims may only be filed within the periods specified 
in paragraph (a) of this section.

[[Page 1080]]



Sec. 1000.196  What must be included in a finding by BIA or in a claim 

by an affected Tribe/Consortium or Tribal organization regarding the 
issue of a limitation or reduction of services?

    An affected Tribe/Consortium must include in its claim a written 
explanation identifying the alleged limitation or reduction of services, 
contracts, or funding for which it is eligible. A finding by BIA must 
likewise identify the limitation or reduction.



Sec. 1000.197  How will BIA resolve a claim?

    All findings and claims timely made in accordance with Sec. Sec. 
1000.194 through 1000.195 will be resolved in accordance with 25 CFR 
part 2.



Sec. 1000.198  How must a limitation or reduction in services, contracts, 
or funds be remedied?

    (a) If funding a participating Tribe/Consortium will limit or reduce 
services, contracts, or funds for which another Tribe/Consortium or 
Tribal organization is eligible, BIA must remedy the reduction as 
follows:
    (1) In the current AFA year BIA must use shortfall funding, 
supplemental funding, or other available BIA resources; and
    (2) In a subsequent AFA year, BIA may adjust the AFA funding in an 
AFA to correct a finding of actual reduction in services, contracts, or 
funds for that subsequent year.
    (b) All adjustments under this section must be mutually agreed 
between BIA and the participating Tribe/Consortium.



                  Subpart I_Public Consultation Process



Sec. 1000.210  When does a non-BIA bureau use a public consultation 
process related to the negotiation of an AFA?

    When required by law or when appropriate under bureau discretion, a 
bureau may use a public consultation process in negotiating an AFA.



Sec. 1000.211  Will the bureau contact the Tribe/Consortium before 
initiating public consultation process for a non-BIA AFA under negotiation?

    Yes, the bureau and the Tribe/Consortium will discuss the 
consultation process to be used in negotiating a non-BIA AFA.
    (a) When public consultation is required by law, the bureau will 
follow the required process and will involve the Tribe/Consortium in 
that process to the maximum extent possible.
    (b) When public consultation is a matter of bureau discretion, at 
Tribal request the Tribe/Consortium and the bureau, unless prohibited by 
law, will jointly develop guidelines for that process, including the 
conduct of any future public meetings. The bureau and the Tribe/
Consortium will jointly identify a list of potential project 
beneficiaries, third-party stakeholders, or third-party users (affected 
parties) for use in the public consultation process.



Sec. 1000.212  What is the role of the Tribe/Consortium when a bureau 
initiates a public meeting?

    When a bureau initiates a public meeting with affected parties it 
will take the following actions:
    (a) The bureau will notify the Tribe/Consortium of the meeting time, 
place, and invited parties:
    (1) Ten days in advance, if possible; or
    (2) If less than 10 days in advance, at the earliest practical time.
    (b) When the bureau notifies the Tribe/Consortium, the bureau will 
invite the Tribe/Consortium to participate in and, unless prohibited by 
law, to co-sponsor or co-facilitate the meeting.
    (c) When possible, the bureau and the Tribe/Consortium should meet 
to plan and discuss the conduct of the meeting, meeting protocols, and 
general participation in the proposed consultation meeting.
    (d) The bureau and the Tribe/Consortium will conduct the meeting in 
a manner that facilitates and does not undermine the government-to-
government relationship and self-governance;
    (e) The Tribe/Consortium may provide technical support to the bureau 
to

[[Page 1081]]

enhance the consultation process, as mutually agreed.



Sec. 1000.213  What should the bureau do if it is invited to attend a 
meeting with respect to the Tribe's/Consortium's proposed AFA?

    If the bureau is invited to participate in meetings, hearings, etc., 
held or conducted by other parties, where the subject matter of the AFA 
under negotiation is expected to be raised, the bureau:
    (a) Shall notify the Tribe/Consortium at the earliest practical 
time; and
    (b) Should encourage the meeting sponsor to invite the Tribe/
Consortium to participate.



Sec. 1000.214  Will the bureau and the Tribe/Consortium share information 
concerning inquiries about the Tribes/Consortia and the AFA?

    Yes, the bureau and the Tribe/Consortium will exchange information 
about inquiries from affected or interested parties relating to the AFA 
under negotiation.



                     Subpart J_Waiver of Regulations



Sec. 1000.220  What regulations apply to self-governance Tribes?

    All regulations that govern the operation of programs included in an 
AFA apply unless waived under this subpart. To the maximum extent 
practical, the parties should identify these regulations in the AFA.



Sec. 1000.221  Can the Secretary grant a waiver of regulations to a 
Tribe/Consortium?

    Yes, a Tribe/Consortium may ask the Secretary to grant a waiver of 
some or all Department of the Interior regulation(s) applicable to a 
program, in whole or in part, operated by a Tribe/Consortium under an 
AFA.



Sec. 1000.222  How does a Tribe/Consortium obtain a waiver?

    To obtain a waiver, the Tribe/Consortium must:
    (a) Submit a written request from the designated Tribal official to 
the Director for BIA programs or the appropriate bureau/office director 
for non-BIA programs;
    (b) Identify the regulation to be waived and the reasons for the 
request;
    (c) Identify the programs to which the waiver would apply;
    (d) Identify what provisions, if any, would be substituted in the 
AFA for the regulation to be waived; and
    (e) When applicable, identify the effect of the waiver on any trust 
programs or resources.



Sec. 1000.223  When can a Tribe/Consortium request a waiver of a regulation?

    A Tribe/Consortium may request a waiver of a regulation:
    (a) As part of the negotiation process; or
    (b) After an AFA has been executed.



Sec. 1000.224  How can a Tribe/Consortium expedite the review of a 
regulation waiver request?

    A Tribe/Consortium may request a meeting or other informal 
discussion with the appropriate bureau officials before submitting a 
waiver request.
    (a) To set up a meeting, the Tribe/Consortium should contact:
    (1) For BIA programs, the Director, OSG; or
    (2) For non-BIA programs, the designated representative of the 
bureau.
    (b) The meeting or discussion is intended to provide:
    (1) A clear understanding of the nature of the request;
    (2) Necessary background and information; and
    (3) An opportunity for the bureau to offer appropriate technical 
assistance.



Sec. 1000.225  Are meetings or discussions mandatory?

    No, a meeting with the bureau officials is not necessary to submit a 
waiver request.



Sec. 1000.226  On what basis may the Secretary deny a waiver request?

    The Secretary may deny a waiver request if:
    (a) For a Title-I-eligible program, the requested waiver is 
prohibited by Federal law; or
    (b) For a non-Title-I-eligible program, the requested waiver is:
    (1) Prohibited by Federal law; or
    (2) Inconsistent with the express provisions of the AFA.

[[Page 1082]]



Sec. 1000.227  What happens if the Secretary denies the waiver request?

    If the Secretary denies a waiver request, the Secretary issues a 
written decision stating:
    (a) The basis for the decision;
    (b) The decision is final for the Department; and
    (c) The Tribe/Consortium may request reconsideration of the denial.



Sec. 1000.228  What are examples of waivers prohibited by law?

    Examples of when a waiver is prohibited by Federal law include:
    (a) When the effect would be to waive or eliminate express statutory 
requirements;
    (b) When a statute authorizes civil and criminal penalties;
    (c) When it would result in a failure to ensure that proper health 
and safety standards are included in an AFA (section 403(e)(2));
    (d) When it would result in a reduction of the level of trust 
services that would have been provided by the Secretary to individual 
Indians (section 403(g)(4));
    (e) When it would limit or reduce the services, contracts, or funds 
to any other Indian Tribe or Tribal organization (section 406(a));
    (f) When it would diminish the Federal trust responsibility to 
Tribes, individual Indians or Indians with trust allotments (Section 
406(b)); or
    (g) When it would violate Federal case law.



Sec. 1000.229  May a Tribe/Consortium propose a substitute for a regulation 
it wishes to be waived?

    Yes, where a Tribe/Consortium wishes to replace the waived 
regulation with a substitute that otherwise maintains the requirements 
of the applicable Federal law, the Secretary may be able to approve the 
waiver request. The Tribe/Consortium and bureau officials must negotiate 
to develop a suggested substitution.



Sec. 1000.230  How is a waiver approval documented for the record?

    The waiver decision is made part of the AFA by attaching a copy of 
it to the AFA and by mutually executing any necessary conforming 
amendments to the AFA. The decisions announcing the waiver also will be 
posted on the Office of Self-Governance web site and all such decisions 
shall be made available on request.



Sec. 1000.231  How does a Tribe/Consortium request reconsideration of 
the Secretary's denial of a waiver?

    (a) The Tribe/Consortium may request reconsideration of a waiver 
denial. To do so, the Tribe/Consortium must submit a request to:
    (1) The Director, OSG, for BIA programs; or
    (2) The appropriate bureau head, for non-BIA programs.
    (b) The request must be filed within 30 days of the day the decision 
is received by certified mail (return receipt requested) or by hand 
delivery. A request submitted by mail will be considered filed on the 
postmark date.
    (c) The request must identify the issues to be addressed, including 
a statement of reasons supporting the request.



Sec. 1000.232  When must DOI respond to a request for reconsideration?

    The Secretary must issue a written decision within 30 days of the 
Department's receipt of a request for reconsideration. This decision is 
final for the Department and no administrative appeal may be made.



                         Subpart K_Construction



Sec. 1000.240  What construction programs included in an AFA are subject 
to this subpart?

    (a) All BIA and non-BIA construction programs included in an AFA are 
subject to this subpart. This includes design, construction, repair, 
improvement, expansion, replacement or demolition of buildings or 
facilities, and other related work for Federal, or Federally funded 
Tribal, facilities and projects.
    (b) The following programs and activities are not construction 
programs and activities:
    (1) Activities limited to providing planning services, 
administrative support services, coordination, responsibility for the 
construction project, day-to-day on-site management on site-

[[Page 1083]]

management and administration of the project, which may include cost 
management, project budgeting, project scheduling and procurement except 
that all project design and actual construction activities are subject 
to all the requirements of subpart K, whether performed by a Tribe/
Consortium, subcontractor, or consultant.
    (2) Housing Improvement Program or road maintenance program 
activities of BIA;
    (3) Operation and maintenance programs; and
    (4) Non-403(c) programs that are less than $100,000, subject to 
section 403(e)(2) of the Act, other applicable Federal law, and Sec. 
1000.256 of this subpart.



Sec. 1000.241  Does this subpart create an agency relationship?

    No, a BIA or non-BIA construction program does not automatically 
create an agency relationship. However, Federal law, provisions of an 
AFA, or Federal actions may create an agency relationship.



Sec. 1000.242  What provisions relating to a construction program may 
be included in an AFA?

    The Secretary and the Tribe/Consortium may negotiate to apply 
specific provisions of the Office of Federal Procurement and Policy Act 
and Federal Acquisition Regulations to a construction part of an AFA. 
Absent a negotiated agreement, such provisions and regulatory 
requirements do not apply.



Sec. 1000.243  What special provisions must be included in an AFA 
that contains a construction program?

    An AFA that contains a construction program must address the 
requirements listed in this section.
    (a) The AFA must specify how the Secretary and the Tribe/Consortium 
must ensure that proper health and safety standards are provided for in 
the implementation of the AFA, including but not limited to:
    (1) The use of architects and engineers licensed to perform the type 
of construction involved in the AFA;
    (2) Applicable Federal, state, local or Tribal building codes and 
applicable engineering standards, appropriate for the particular 
project; and
    (3) Necessary inspections and testing by the Tribe.
    (b) The AFA must comply with applicable Federal laws, program 
statutes and regulations.
    (c) The AFA must specify the services to be provided, the work to be 
performed, and the responsibilities of the Tribe/Consortium and the 
Secretary under the AFA.
    (d) The Secretary may require the Tribe/Consortium to provide brief 
progress reports and financial status reports. The parties may negotiate 
in the AFA the frequency, format and content of the reporting 
requirement. As negotiated, these reports may include:
    (1) A narrative of the work accomplished;
    (2) The percentage of the work completed;
    (3) A report of funds expended during the reporting period; and
    (4) The total funds expended for the project.



Sec. 1000.244  May the Secretary suspend construction activities under 
an AFA?

    (a) The Secretary may require a Tribe/Consortium to suspend certain 
work under a construction portion of an AFA for up to 30 days only if:
    (1) Site conditions adversely affect health and safety; or
    (2) Work in progress or completed fails to substantially carry out 
the terms of the AFA without good cause.
    (b) The Secretary may suspend only work directly related to the 
criteria specified in paragraph (a) of this section unless other reasons 
for suspension are specifically negotiated in the AFA.
    (c) Unless the Secretary determines that a health and safety 
emergency requiring immediate action exists, before suspending work the 
Secretary must provide:
    (1) A 5 working days written notice; and
    (2) An opportunity for the Tribe/Consortium to correct the problem.
    (d) The Tribe/Consortium must be compensated for reasonable costs 
due

[[Page 1084]]

to any suspension of work that occurred through no fault of the Tribe/
Consortium. Project funds will not be used for this purpose. However, if 
suspension occurs due to the action or inaction of the Tribe/Consortium, 
then project funds will be used to cover suspension related activities.



Sec. 1000.245  May a Tribe/Consortium continue work with construction 
funds remaining in an AFA at the end of the funding year?

    Yes, any funds remaining in an AFA at the end of the funding year 
may be spent for construction under the terms of the AFA.



Sec. 1000.246  Must an AFA that contains a construction project or 
activity incorporate provisions of Federal construction standards?

    No, the Secretary may provide information about Federal standards as 
early as possible in the construction process. If Tribal construction 
standards are consistent with or exceed applicable Federal standards, 
then the Secretary must accept the Indian Tribe/Consortium's proposed 
standards. The Secretary may accept commonly accepted industry 
construction standards.



Sec. 1000.247  May the Secretary require design provisions and other 

terms and conditions for construction programs or activities included 
in an AFA under section 403(c) of the Act?

    Yes, the relevant bureau may provide to the Tribe/Consortium project 
design criteria and other terms and conditions that are required for 
such a project. The project must be completed in accordance with the 
terms and conditions set forth in the AFA.



Sec. 1000.248  What is the Tribe's/Consortium's role in a construction 
program included in an AFA?

    The Tribe/Consortium has the following role regarding a construction 
portion of an AFA:
    (a) Under the Act, the Indian Tribe/Consortium must successfully 
complete the project in accordance with the terms and conditions in the 
AFA.
    (b) The Tribe/Consortium must give the Secretary timely notice of 
any proposed changes to the project that require an increase to the 
negotiated funding amount or an increase in the negotiated performance 
period or any other significant departure from the scope or objective of 
the project. The Tribe/Consortium and Secretary may negotiate to include 
timely notice requirements in the AFA.



Sec. 1000.249  What is the Secretary's role in a construction program 
in an AFA?

    The Secretary has the following role regarding a construction 
program contained in an AFA:
    (a) Except as provided in Sec. 1000.256, the Secretary may review 
and approve planning and design documents in accordance with terms 
negotiated in the AFA to ensure health and safety standards and 
compliance with Federal law and other program mandates;
    (b) Unless otherwise agreed to in an AFA, the Secretary reserves a 
royalty-free, nonexclusive, and irrevocable license to reproduce, 
publish, or otherwise use for Federal Government purposes, designs 
produced in the construction program that are funded by AFA monies, 
including:
    (1) The copyright to any work developed under a contract or 
subcontract; and
    (2) Any rights of copyright that an Indian Tribe/Consortium or a 
Tribal contractor purchases through the AFA;
    (c) The Secretary may conduct on-site monitoring visits as 
negotiated in the AFA;
    (d) The Secretary must approve any proposed changes in the 
construction program or activity that require an increase in the 
negotiated AFA funding amount or an increase in the negotiated 
performance period or are a significant departure from the scope or 
objective of the construction program as agreed to in the AFA;
    (e) The Secretary may conduct final project inspection jointly with 
the Indian Tribe/Consortium and may accept the construction project or 
activity as negotiated in the AFA;
    (f) Where the Secretary and the Tribe/Consortium share construction 
program activities, the AFA may provide for the exchange of information;

[[Page 1085]]

    (g) The Secretary may reassume the construction portion of an AFA if 
there is a finding of:
    (1) A significant failure to substantially carry out the terms of 
the AFA without good cause; or
    (2) Imminent jeopardy to a physical trust asset, to a natural 
resource, or that adversely affects public health and safety as provided 
in subpart M of this part.



Sec. 1000.250  How are property and funding returned if there is a 
reassumption for substantial failure to carry out an AFA?

    If there is a reassumption for substantial failure to carry out an 
AFA, property and funding will be returned as provided in subparts M and 
N of this part.



Sec. 1000.251  What happens when a Tribe/Consortium is suspended for 

substantial failure to carry out the terms of an AFA without good cause 
and does not correct the failure during the suspension?

    (a) Except when the Secretary makes a finding of imminent jeopardy 
to a physical trust asset, a natural resource, or public health and 
safety as provided in subpart M of these regulations a finding of 
substantial failure to carry out the terms of the AFA without good cause 
must be processed under the suspension of work provision of Sec. 
1000.244.
    (b) If the substantial failure to carry out the terms of the AFA 
without good cause is not corrected or resolved during the suspension of 
work, the Secretary may initiate a reassumption at the end of the 30-day 
suspension of work if an extension has not been negotiated. Any 
unresolved dispute will be processed in accordance with the Contract 
Disputes Act of 1978, 41 U.S.C. 601, et seq.



Sec. 1000.252  Do all provisions of other subparts apply to construction 
portions of AFAs?

    Yes, all provisions of other subparts apply to construction portions 
of AFAs unless those provisions are inconsistent with this subpart.



Sec. 1000.253  When a Tribe withdraws from a Consortium, is the Secretary 

required to award to the withdrawing Tribe a portion of funds associated 
with a construction project if the withdrawing Tribe so requests?

    Under Sec. 1000.35 of this part, a Tribe may withdraw from a 
Consortium and request its portion of a construction project's funds. 
The Secretary may decide not to award these funds if the award will 
affect the Consortium's ability to complete a non-severable phase of the 
project within available funding. An example of a non-severable phase of 
a project would be the construction of a single building serving all 
members of the Consortium. An example of a severable phase of a project 
would be the funding for a road in one village where the Consortium 
would be able to complete the roads in the other villages that were part 
of the project approved initially in the AFA. The Secretary's decision 
under this section may be appealed under subpart R of this part.



Sec. 1000.254  May a Tribe/Consortium reallocate funds from a construction 
program to a non-construction program?

    No, a Tribe/Consortium may not reallocate funds from a construction 
program to a non-construction program unless otherwise provided under 
the relevant appropriation acts.



Sec. 1000.255  May a Tribe/Consortium reallocate funds among construction 
programs?

    Yes, a Tribe/Consortium may reallocate funds among construction 
programs if permitted by appropriation law or if approved in advance by 
the Secretary.



Sec. 1000.256  Must the Secretary retain project funds to ensure proper 
health and safety standards in construction projects?

    Yes, the Secretary must retain project funds to ensure proper health 
and safety standards in construction projects. Examples of purposes for 
which bureaus may retain funds include:

[[Page 1086]]

    (a) Determining or approving appropriate construction standards to 
be used in AFAs;
    (b) Verifying that there is an adequate Tribal inspection system 
utilizing licensed professionals;
    (c) Providing for sufficient monitoring of design and construction 
by the Secretary; and
    (d) Requiring corrective action during performance when appropriate.



                      Subpart L_Federal Tort Claims



Sec. 1000.270  What does this subpart cover?

    This subpart explains the applicability of the Federal Tort Claims 
Act (FTCA). This section covers:
    (a) Coverage of claims arising out of the performance of functions 
under Self-Governance AFA's; and
    (b) Procedures for filing claims under FTCA.



Sec. 1000.271  What other statutes and regulations apply to FTCA coverage?

    A number of other statutes and regulations apply to FTCA coverage, 
including the Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671-
2680) and related Department of Justice regulations in 28 CFR part 14.



Sec. 1000.272  Do Tribes/Consortia need to be aware of areas which FTCA 
does not cover?

    Yes, there are claims against Self-Governance Tribes/Consortia which 
are not covered by FTCA, claims which may not be pursued under FTCA, and 
remedies that are excluded by FTCA. The following general guidance is 
not intended as a definitive description of coverage, which is subject 
to review by the Department of Justice and the courts on a case-by-case 
basis.
    (a) What claims are expressly barred by FTCA and therefore may not 
be made against the United States, a Tribe or Consortium? Any claim 
under 28 U.S.C. 2680, including claims arising out of assault, battery, 
false imprisonment, false arrest, malicious prosecution, abuse of 
process, libel, slander, misrepresentation, deceit, or interference with 
contract rights, unless otherwise authorized by 28 U.S.C. 2680(h).
    (b) What claims may not be pursued under FTCA?
    (1) Claims against subcontractors arising out of the performance of 
subcontracts with a Self-Governance Tribe/Consortium;
    (2) Claims for on-the-job injuries which are covered by workmen's 
compensation;
    (3) Claims for breach of contract rather than tort claims; or
    (4) Claims resulting from activities performed by an employee which 
are outside the scope of employment.
    (c) What remedies are expressly excluded by FTCA and therefore are 
barred?
    (1) Punitive damages, unless otherwise authorized by 28 U.S.C. 2674; 
and
    (2) Other remedies not permitted under applicable state law.



Sec. 1000.273  Is there a deadline for filing FTCA claims?

    Yes, claims shall be filed within 2 years of the date of accrual. 
(28 U.S.C. 2401).



Sec. 1000.274  How long does the Federal government have to process a FTCA 

claim after the claim is received by the Federal agency, before a lawsuit 
may be filed?

    The Federal government has 6 months to process a FTCA claim after 
the claim is received by the Federal agency, before a lawsuit may be 
filed.



Sec. 1000.275  Is it necessary for a self-governance AFA to include any 
clauses about FTCA coverage?

    No, clauses about FTCA coverage are optional. At the request of 
Tribes/Consortia, self-governance AFA's shall include the following 
clause to clarify the scope of FTCA coverage:

    For purposes of Federal Tort Claims Act coverage, the Tribe/
Consortium and its employees (including individuals performing personal 
services contracts with the tribe/consortium) are deemed to be employees 
of the Federal government while performing work under this AFA. This 
status is not changed by the source of the funds used by the Tribe/
Consortium to pay the employee's salary and benefits unless the employee 
receives additional compensation for performing covered services from 
anyone other than the Tribe/Consortium.

[[Page 1087]]



Sec. 1000.276  Does FTCA apply to a self-governance AFA if FTCA is not 
referenced in the AFA?

    Yes, FTCA applies even if the AFA does not mention it.



Sec. 1000.277  To what extent shall the Tribe/Consortium cooperate with 

the Federal government in connection with tort claims arising out of the 
Tribe's/Consortium's performance?

    (a) The Tribe/Consortium shall designate an individual to serve as 
tort claims liaison with the Federal government.
    (b) As part of the notification required by 28 U.S.C. 2679(c), the 
Tribe/Consortium shall notify the Secretary immediately in writing of 
any tort claim (including any proceeding before an administrative agency 
or court) filed against the Tribe/Consortium or any of its employees 
that relates to performance of a self-governance AFA or subcontract.
    (c) The Tribe/Consortium, through its designated tort claims 
liaison, shall assist the appropriate Federal agency in preparing a 
comprehensive, accurate, and unbiased report of the incident so that the 
claim may be properly evaluated. This report should be completed within 
60 days of notification of the filing of the tort claim. The report 
should be complete in every significant detail and include as 
appropriate:
    (1) The date, time and exact place of the accident or incident;
    (2) A concise and complete statement of the circumstances of the 
accident or incident;
    (3) The names and addresses of Tribal and/or Federal employees 
involved as participants or witnesses;
    (4) The names and addresses of all other eyewitnesses;
    (5) An accurate description of all government and other privately-
owned property involved and the nature and amount of damage, if any;
    (6) A statement as to whether any person involved was cited for 
violating a Federal, State or tribal law, ordinance, or regulation;
    (7) The Tribe's/Consortium's determination as to whether any of its 
employees (including Federal employees assigned to the Tribe/Consortium) 
involved in the incident giving rise to the tort claim were acting 
within the scope of their employment in carrying out the contract at the 
time the incident occurred;
    (8) Copies of all relevant documentation, including available police 
reports, statements of witnesses, newspaper accounts, weather reports, 
plats and photographs of the site or damaged property, such as may be 
necessary or useful for purposes of claim determination by the Federal 
agency; and
    (9) Insurance coverage information, copies of medical bills, and 
relevant employment records.
    (d) The Tribe/Consortium shall cooperate with and provide assistance 
to the U.S. Department of Justice attorneys assigned to defend the tort 
claim, including, but not limited to, case preparation, discovery, and 
trial.
    (e) If requested by the Secretary, the Tribe/Consortium shall make 
an assignment and subrogation of all the Tribe's/Consortium's rights and 
claims (except those against the Federal government) arising out of a 
tort claim against the Tribe/Consortium.
    (f) If requested by the Secretary, the Tribe/Consortium shall 
authorize representatives of the Secretary to settle or defend any claim 
and to represent the Tribe/Consortium in or take charge of any action.
    (g) If the Federal government undertakes the settlement or defense 
of any claim or action, the Tribe/Consortium shall provide all 
reasonable additional assistance in reaching a settlement or asserting a 
defense.



Sec. 1000.278  Does this coverage extend to subcontractors of self-governance 
AFAs?

    No, subcontractors or subgrantees providing services to a Pub. L. 
93-638 Tribe/Consortium are generally not covered.



Sec. 1000.279  Is FTCA the exclusive remedy for a tort claim, including a 

claim concerning personal injury or death, resulting from the performance 
of a self-governance AFA?

    Yes, except as explained in Sec. 1000.272(b). No claim may be filed 
against a self-governance Tribe/Consortium or employee based upon 
performance of functions under a self-governance AFA. All claims shall 
be filed

[[Page 1088]]

against the United States and are subject to the limitations and 
restrictions of FTCA.



Sec. 1000.280  What employees are covered by FTCA for medical-related 
claims?

    The following employees are covered by FTCA for medical-related 
claims:
    (a) Permanent employees;
    (b) Temporary employees;
    (c) Persons providing services without compensation in carrying out 
a contract;
    (d) Persons required because of their employment by a self-
governance Tribe/Consortium to serve non-IHS beneficiaries (even if the 
services are provided in facilities not owned by the Tribe/Consortium; 
and,
    (e) Federal employees assigned to the AFA.



Sec. 1000.281  Does FTCA cover employees of the Tribe/Consortium who are 

paid by the Tribe/Consortium from funds other than those provided through 
the self-governance AFA?

    Yes, FTCA covers employees of the Tribe/Consortium who are not paid 
from AFA funds as long as the services out of which the claim arose were 
performed in carrying out the self-governance AFA.



Sec. 1000.282  May persons who are not Indians or Alaska Natives assert 
claims under FTCA?

    Yes, non-Indian individuals served under the self-governance AFA, 
may assert claims under this Subpart.



Sec. 1000.283  If the Tribe/Consortium or Tribe's/Consortium's employee 

receives a summons and/or a complaint alleging a tort covered by FTCA, 
what should the Tribe/Consortium do?

    As part of the notification required by 28 U.S.C. 2679(c), if the 
Tribe/Consortium or Tribe's/Consortium's employee receives a summons 
and/or complaint alleging a tort covered by FTCA, the Tribe/Consortium 
should immediately:
    (a) Inform the Assistant Solicitor, Procurement and Patents, Office 
of the Solicitor, Department of the Interior, Room 6511, 1849 C Street 
NW., Washington, DC 20240,
    (b) Inform the Tribe's/Consortium's tort claims liaison, and
    (c) Forward all of the materials identified in Sec. 1000.277(c) to 
the contacts given in Sec. 1000.283 (a) and (b).



                         Subpart M_Reassumption



Sec. 1000.300  What is the purpose of this subpart?

    This subpart explains when the Secretary can reassume a program 
without the consent of a Tribe/Consortium.



Sec. 1000.301  When may the Secretary reassume a Federal program operated 
by a Tribe/Consortium under an AFA?

    The Secretary may reassume any Federal program operated by a Tribe/
Consortium upon a finding of imminent jeopardy to:
    (a) A physical trust asset;
    (b) A natural resource; or
    (c) Public health and safety.



Sec. 1000.302  ``What is imminent jeopardy'' to a trust asset?

    Imminent jeopardy means an immediate threat and likelihood of 
significant devaluation, degradation, damage, or loss of a trust asset, 
or the intended benefit from the asset caused by the actions or 
inactions of a Tribe/Consortium in performing trust functions. This 
includes disregarding Federal trust standards and/or Federal law while 
performing trust functions if the disregard creates such an immediate 
threat.



Sec. 1000.303  What is imminent jeopardy to natural resources?

    The standard for natural resources is the same as for a physical 
trust asset, except that a review for compliance with the specific 
mandatory statutory provisions related to the program as reflected in 
the funding agreement must also be considered.



Sec. 1000.304  What is imminent jeopardy to public health and safety?

    Imminent jeopardy to public health and safety means an immediate and 
significant threat of serious harm to human well-being, including 
conditions that may result in serious injury, or

[[Page 1089]]

death, caused by Tribal action or inaction or as otherwise provided in 
an AFA.



Sec. 1000.305  In an imminent jeopardy situation, what must the Secretary do?

    In an imminent jeopardy situation, the Secretary must:
    (a) The Secretary must immediately notify the Tribe/Consortium in 
writing following discovery of imminent jeopardy; or
    (b) If there is an immediate threat to human health, safety, or 
welfare, the Secretary may immediately reassume operation of the program 
regardless of the timeframes specified in this subpart.



Sec. 1000.306  Must the Secretary always reassume a program, upon a finding 
of imminent jeopardy?

    Yes, the Secretary must reassume a program within 60 days of a 
finding of imminent jeopardy, unless the Secretary's designated 
representative determines that the Tribe/Consortium is able to mitigate 
the conditions.



Sec. 1000.307  What happens if the Secretary's designated representative 
determines that the Tribe/Consortium cannot mitigate the conditions within 60 days?

    The Secretary will proceed with the reassumption in accordance with 
this subpart by sending the Tribe/Consortium a written notice of the 
Secretary's intent to reassume.



Sec. 1000.308  What will the notice of reassumption include?

    The notice of reassumption under Sec. 1000.307 will include all of 
the following items. In addition, if resources are available, the 
Secretary may offer technical assistance to mitigate the imminent 
jeopardy.
    (a) A statement of the reasons supporting the Secretary's finding.
    (b) To the extent practical, a description of specific measures that 
must be taken by the Tribe/Consortium to eliminate imminent jeopardy.
    (c) A notice that funds for the management of the trust asset, 
natural resource, or public health and safety found to be in imminent 
jeopardy may not be reallocated or otherwise transferred without the 
Secretary's written consent.
    (d) A notice of intent to invoke the return of property provision of 
the AFA.
    (e) The effective date of the reassumption if the Tribe/Consortium 
does not eliminate the imminent jeopardy. If the deadline is less than 
60 days after the date of receipt, the Secretary must include a 
justification.
    (f) The amount of funds, if any, that the Secretary believes the 
Tribe/Consortium should refund to the Department for operation of the 
reassumed program. This amount cannot exceed the amount provided for 
that program under the AFA and must be based on such factors as the time 
or functions remaining in the funding cycle.



Sec. 1000.309  How much time will a Tribe/Consortium have to respond to 
a notice of imminent jeopardy?

    The Tribe/Consortium will have 5 days to respond to a notice of 
imminent jeopardy. The response must be written and may be mailed, 
telefaxed, or sent by electronic mail. If sent by mail, it must be sent 
by certified mail, return receipt requested; the postmark date will be 
considered the date of response.



Sec. 1000.310  What information must the Tribe's/Consortium's response 
contain?

    (a) The Tribe's/Consortium's response must indicate the specific 
measures that the Tribe/Consortium will take to eliminate the finding of 
imminent jeopardy.
    (b) If the Tribe/Consortium proposes mitigating actions different 
from those prescribed in the Secretary's notice of imminent jeopardy, 
the response must explain the reasons for deviating from the Secretary's 
recommendations and how the proposed actions will eliminate imminent 
jeopardy.



Sec. 1000.311  How will the Secretary reply to the Tribe's/Consortium's 
response?

    The Secretary will make a written determination within 10 days of 
the Tribe's/Consortium's written response as to whether the proposed 
measures will eliminate the finding of imminent jeopardy.

[[Page 1090]]



Sec. 1000.312  What happens if the Secretary accepts the 
Tribe's/Consortium's proposed measures?

    The Secretary must notify the Tribe/Consortium in writing of the 
acceptance and suspend the reassumption process.



Sec. 1000.313  What happens if the Secretary does not accept the 
Tribe's/Consortium's proposed measures?

    (a) If the Secretary finds that the Tribes/Consortia proposed 
measures will not mitigate imminent jeopardy, he/she will notify the 
Tribe/Consortium in writing of this determination and of the Tribe's/
Consortium's right to appeal
    (b) After the reassumption, the Secretary is responsible for the 
reassumed program, and will take appropriate corrective action to 
eliminate the imminent jeopardy which may include sending Department 
employees to the site.



Sec. 1000.314  What must a Tribe/Consortium do when a program is reassumed?

    On the effective date of reassumption, the Tribe/Consortium must, at 
the request of the Secretary, deliver all property and equipment, and 
title thereto:
    (a) That the Tribe/Consortium received for the program under the 
AFA; and
    (b) That has a per item value in excess of $5,000, or as otherwise 
provided in the AFA.



Sec. 1000.315  When must the Tribe/Consortium return funds to the Department?

    The Tribe/Consortium must repay funds to the Department as soon as 
practical after the effective date of the reassumption.



Sec. 1000.316  May the Tribe/Consortium be reimbursed for actual and 

reasonable ``wind up costs'' incurred after the effective date of 
retrocession?

    Yes, the Tribe/Consortium may be reimbursed for actual and 
reasonable ``wind up costs'' to the extent that funds are available.



Sec. 1000.317  Is a Tribe's/Consortium's general right to negotiate an 
AFA adversely affected by a reassumption action?

    A reassumption action taken by the Secretary does not affect the 
Tribe's/Consortium's ability to negotiate an AFA for programs not 
affected by the reassumption.



Sec. 1000.318  When will the Secretary return management of a reassumed 
program?

    A reassumed program may be included in future AFAs, but the 
Secretary may include conditions in the terms of the AFA to ensure that 
the circumstances that caused jeopardy to attach do not reoccur.



                         Subpart N_Retrocession



Sec. 1000.330  What is the purpose of this subpart?

    This subpart explains what happens when a Tribe/Consortium 
voluntarily returns a program to a bureau.



Sec. 1000.331  Is a decision by a Tribe/Consortium not to include a 
program in a successor agreement considered a retrocession?

    No, a decision by a Tribe/Consortium not to include a program in a 
successor agreement is not a retrocession because the Tribe/Consortium 
is under no obligation beyond an existing AFA.



Sec. 1000.332  Who may retrocede a program in an AFA?

    A Tribe/Consortium may retrocede a program. However, the right of a 
Consortium member to retrocede may be subject to the terms of the 
agreement among the members of the Consortium.



Sec. 1000.333  How does a Tribe/Consortium retrocede a program?

    The Tribe/Consortium must submit:
    (a) A written notice to:
    (1) The Office of Self-Governance for BIA programs; or
    (2) The appropriate bureau for non-BIA programs; and
    (b) A Tribal resolution or other official action of its governing 
body.

[[Page 1091]]



Sec. 1000.334  When will the retrocession become effective?

    Unless subsequently rescinded by the Tribe/Consortium, a 
retrocession is only effective on a date mutually agreed upon by the 
Tribe/Consortium and the Secretary, or as provided in the AFA.



Sec. 1000.335  How will retrocession affect the Tribe's/Consortium's 
existing and future AFAs?

    Retrocession does not affect other parts of the AFA or funding 
agreements with other bureaus. A Tribe/Consortium may request to 
negotiate for and include retroceded programs in future AFAs or through 
a self-determination contract.



Sec. 1000.336  Does the Tribe/Consortium have to return funds used in 
the operation of a retroceded program?

    The Tribe/Consortium and the Secretary must negotiate the amount of 
funding to be returned to the Secretary for the operation of the 
retroceded program. This amount must be based on such factors as the 
time remaining or functions remaining in the funding cycle or as 
provided in the AFA.



Sec. 1000.337  Does the Tribe/Consortium have to return property used in 
the operation of a retroceded program?

    On the effective date of any retrocession, the Tribe/Consortium must 
return all property and equipment, and title thereto:
    (a) That was acquired under the AFA for the program being 
retroceded; and
    (b) That has a per item value in excess of $5,000 at the time of the 
retrocession, or as otherwise provided in the AFA.



Sec. 1000.338  What happens to a Tribe's/Consortium's mature contract 

status if it has retroceded a program that is also available for 
self-determination contracting?

    Retrocession has no effect on mature contract status, provided that 
the 3 most recent audits covering activities administered by the Tribe 
have no unresolved material audit exceptions.



Sec. 1000.339  How does retrocession affect a bureau's operation of the 
retroceded program?

    The level of operation of the program will depend upon the amount of 
funding that is returned with the retrocession.



                    Subpart O_Trust Evaluation Review



Sec. 1000.350  What is the purpose of this subpart?

    This subpart describes how the trust responsibility of the United 
States is legally maintained through a system of trust evaluations when 
Tribes/Consortia perform trust functions through AFAs under the Tribal 
Self-Governance Act of 1994. It describes the principles and processes 
upon which trust evaluations will be based.



Sec. 1000.351  Does the Tribal Self-Governance Act of 1994 alter the 

trust responsibility of the United States to Indian Tribes and individuals 
under self-governance?

    No, the Act does, however, permit a Tribe/Consortium to assume 
management responsibilities for trust assets and resources on its own 
behalf and on behalf of individual Indians. Under the Act, the Secretary 
has a trust responsibility to conduct annual trust evaluations of Tribal 
performance of trust functions to ensure that Tribal and individual 
trust assets and resources are managed in accordance with the legal 
principles and standards governing the performance of trust functions if 
trust assets or resources are found to be in imminent jeopardy.



Sec. 1000.352  What are ``trust resources'' for the purposes of the trust 
evaluation process?

    (a) Trust resources include property and interests in property:
    (1) That are held in trust by the United States for the benefit of a 
Tribe or individual Indians; or
    (2) That are subject to restrictions upon alienation.
    (b) Trust assets include:
    (1) Other assets, trust revenue, royalties, or rental, including 
natural resources, land, water, minerals, funds,

[[Page 1092]]

property, assets, or claims, and any intangible right or interest in any 
of the foregoing;
    (2) Any other property, asset, or interest therein, or treaty right 
for which the United States is charged with a trust responsibility. For 
example, water rights and off-reservation treaty rights.
    (c) This definition defines trust resources for purposes of the 
trust evaluation process only.



Sec. 1000.353  What are ``trust functions'' for the purposes of the trust 
evaluation process?

    Trust functions are those programs necessary to the management of 
assets held in trust by the United States for an Indian Tribe or 
individual Indian.

                        Annual Trust Evaluations



Sec. 1000.354  What is a trust evaluation?

    A trust evaluation is an annual review and evaluation of trust 
functions performed by a Tribe/Consortium to ensure that the functions 
are performed in accordance with trust standards as defined by Federal 
law. Trust evaluations address trust functions performed by the Tribe/
Consortium on its own behalf as well as trust functions performed by the 
Tribe/Consortium for the benefit of individual Indians or Alaska 
Natives.



Sec. 1000.355  How are trust evaluations conducted?

    (a) Each year the Secretary's designated representative(s) will 
conduct trust evaluations for each self-governance AFA. The Secretary's 
designated representative(s) will coordinate with the designated 
Tribe's/Consortium's representative(s) throughout the review process, 
including the written report required by Sec. 1000.365.
    (b) This section describes the general framework for trust reviews. 
However, each Tribe/Consortium may develop, with the appropriate bureau, 
an individualized trust evaluation process to allow for the Tribe's/
Consortium's unique history and circumstances and the terms and 
conditions of its AFA. An individualized trust evaluation process must, 
at a minimum, contain the measures in paragraph (d) of this section.
    (c) To facilitate the review process so as to mitigate costs and 
maximize efficiency, each Tribe/Consortium must provide access to all 
records, plans, and other pertinent documents relevant to the program(s) 
under review not otherwise available to the Department.
    (d) The Secretary's designated representative(s) will:
    (1) Review trust transactions;
    (2) Conduct on-site inspections of trust resources, as appropriate;
    (3) Review compliance with applicable statutory and regulatory 
requirements;
    (4) Review compliance with the trust provisions of the AFA;
    (5) Ensure that the same level of trust services is provided to 
individual Indians as would have been provided by the Secretary;
    (6) Document deficiencies in the performance of trust functions 
discovered during the review process; and
    (7) Ensure the fulfillment of the Secretary's trust responsibility 
to Tribes and individual Indians by documenting the existence of:
    (i) Systems of internal controls;
    (ii) Trust standards; and
    (iii) Safeguards against conflicts of interest in the performance of 
trust functions.
    (e) At the request of a Tribe/Consortium, at the time the AFA is 
negotiated, the standards will be negotiated, except where standards are 
otherwise provided for by law.



Sec. 1000.356  May the trust evaluation process be used for additional 
reviews?

    Yes, if the parties agree.



Sec. 1000.357  May the parties negotiate standards of review for purposes 
of the trust evaluation?

    Yes, unless standards are otherwise provided by Federal treaties, 
statutes, case law or regulations not waived, the Secretary's designated 
representative will negotiate standards of review at the request of the 
Tribe/Consortium.

[[Page 1093]]



Sec. 1000.358  Can an initial review of the status of the trust asset be 
conducted?

    If the parties agree and it is practical, the Secretary may 
determine the status of the trust resource at the time of the transfer 
of the function or at a later time.



Sec. 1000.359  What are the responsibilities of the Secretary's designated 
representative(s) after the annual trust evaluation?

    The Secretary's representative(s) must prepare a written report 
documenting the results of the trust evaluation.
    (a) Upon Tribal/Consortium request, the representative(s) will 
provide the Tribal/Consortium representative(s) with a copy of the 
report for review and comment before finalization.
    (b) The representative(s) will attach to the report any Tribal/
Consortium comments that the representative does not accept.



Sec. 1000.360  Is the trust evaluation standard or process different when 
the trust asset is held in trust for an individual Indian or Indian allottee?

    No, Tribes/Consortia are under the same obligation as the Secretary 
to perform trust functions and related activities in accordance with 
trust protection standards and principles whether managing Tribally or 
individually owned trust assets. The process for conducting annual trust 
evaluations of Tribal performance of trust functions on behalf of 
individual Indians is the same as that used in evaluating performance of 
Tribal trust functions.



Sec. 1000.361  Will the annual review include a review of the Secretary's 
residual trust functions?

    Yes, if the annual evaluation reveals that deficient performance of 
a trust function is due to the action or inaction of a bureau, the 
evaluation report will note the deficiency and the appropriate 
Department official will be notified of the need for corrective action. 
The review of the Secretary's trust functions shall be based on the 
standards in this subpart, other applicable law, and other Federal law.



Sec. 1000.362  What are the consequences of a finding of imminent jeopardy 
in the annual trust evaluation?

    (a) A finding of imminent jeopardy triggers the Federal reassumption 
process (see subpart M of this part), unless the conditions in paragraph 
(b) of this section are met.
    (b) The reassumption process will not be triggered if the 
Secretary's designated representative determines that the Tribe/
Consortium:
    (1) Can cure the conditions causing jeopardy within 60 days; and
    (2) Will not cause significant loss, harm, or devaluation of a trust 
asset, natural resources, or the public health and safety.



Sec. 1000.363  What if the trust evaluation reveals problems that do not 
rise to the level of imminent jeopardy?

    Where problems not rising to the level of imminent jeopardy are 
caused by Tribal action or inaction, the conditions must be:
    (a) Documented in the annual trust evaluation report;
    (b) Reported to the Secretary; and
    (c) Reported in writing to:
    (1) The governing body of the Tribe; and
    (2) In the case of a Consortium, to the governing body of each Tribe 
on whose behalf the Consortium is performing the trust functions.



Sec. 1000.364  Who is responsible for corrective action?

    The Tribe/Consortium is primarily responsible for identifying and 
implementing corrective actions for matters contained in the AFA, but 
the Department may also suggest possible corrective measures for Tribal 
consideration.



Sec. 1000.365  What are the requirements of the review team report?

    A report summarizing the results of the trust evaluation will be 
prepared and copies provided to the Tribe/Consortium. The report must:
    (a) Be written objectively, concisely, and clearly; and
    (b) Present information accurately and fairly, including only 
relevant and adequately supported information, findings, and 
conclusions.

[[Page 1094]]



Sec. 1000.366  Can the Department conduct more than one trust evaluation 
per Tribe per year?

    Trust evaluations are normally conducted annually. When the 
Department receives information of a threat of imminent jeopardy to a 
trust asset, natural resource, or the public health and safety, the 
Secretary, as trustee, may conduct a preliminary investigation. If the 
preliminary investigation shows that appropriate, sufficient data are 
present to indicate there may be imminent jeopardy, the Secretary's 
designated representative:
    (a) Will notify the Tribe/Consortium in writing; and
    (b) May conduct an on-site inspection upon 2 days' advance written 
notice to the Tribe/Consortium.



Sec. 1000.367  Will the Department evaluate a Tribe's/Consortium's 
performance of non-trust related programs?

    This depends on the terms contained in the AFA.



                            Subpart P_Reports



Sec. 1000.380  What is the purpose of this subpart?

    This subpart describes what reports are developed under self-
governance.



Sec. 1000.381  How is information about self-governance developed and 
reported?

    Annually, the Secretary will compile a report on self-governance for 
submission to the Congress. The report will be based on:
    (a) Audit reports routinely submitted by Tribes/Consortia;
    (b) The number of retrocessions requested by Tribes/Consortia in the 
reporting year;
    (c) The number of reassumptions that occurred in the reporting year;
    (d) Federal reductions-in-force and reorganizations resulting from 
self-governance activity;
    (e) The type of residual functions and amount of residual funding 
retained by BIA; and
    (f) An annual report submitted to the Secretary by each Tribe/
Consortium as described in



Sec. 1000.382  What may the Tribe's/Consortium's annual report on 
self-governance address?

    (a) The Tribe's/Consortium's annual self-governance report may 
address:
    (1) A list of unmet Tribal needs in order of priority;
    (2) The approved, year-end Tribal budget for the programs and 
services funded under self-governance, summarized and annotated as the 
Tribe may deem appropriate;
    (3) Identification of any reallocation of trust programs;
    (4) Program and service delivery highlights, which may include a 
narrative of specific program redesign or other accomplishments or 
benefits attributed to self-governance; and
    (5) At the Tribe's/Consortium's option, a summary of the highlights 
of the report referred to in paragraph (a)(2) of this section and other 
pertinent information the Tribes may wish to report.
    (b) The report submitted under this section is intended to provide 
the Department with information necessary to meet its Congressional 
reporting responsibilities and to fulfill its responsibility as an 
advocate for self-governance. The Tribal reporting requirement is not 
intended to be burdensome, and Tribes are encouraged to design and 
present the report in a brief and concise manner.



                   Subpart Q_Miscellaneous Provisions



Sec. 1000.390  How can a Tribe/Consortium hire a Federal employee to 
help implement an AFA?

    If a Tribe/Consortium chooses to hire a Federal employee, it can use 
one of the arrangements listed in this section:
    (a) The Tribe can use its own Tribal personnel hiring procedures. 
Federal employees hired by the Tribe/Consortium are separated from 
Federal service.
    (b) The Tribe can ``direct hire'' a Federal employee as a Tribal 
employee. The employee will be separated from Federal service and work 
for the Tribe/Consortium, but maintain a negotiated Federal benefit 
package that is paid for by the Tribe/Consortium out of AFA program 
funds; or

[[Page 1095]]

    (c) The Tribe can negotiate an agreement under the Intergovernmental 
Personnel Act, 25 U.S.C. 48, or other applicable Federal law. The 
employee will remain a Federal employee during the term of the 
agreement.



Sec. 1000.391  Can a Tribe/Consortium employee be detailed to a Federal 
service position?

    Yes, under the Intergovernmental Personnel Act, 25 U.S.C. 48, or 
other applicable law, when permitted by the Secretary.



Sec. 1000.392  How does the Freedom of Information Act apply?

    (a) Access to records maintained by the Secretary is governed by the 
Freedom of Information Act (5 U.S.C. 552) and other applicable Federal 
law.
    (b) At the option of the Tribe/Consortium under section 108 of the 
Pub. L. 93-638, except for previously provided copies of Tribe/
Consortium records that the Secretary demonstrates are clearly required 
to be maintained as part of the record keeping system of the Department 
of the Interior, records of the Tribe/Consortium shall not be considered 
Federal records for the purpose of the Freedom of Information Act.
    (c) The Freedom of Information Act does not apply to records 
maintained solely by Tribes/Consortia.



Sec. 1000.393  How does the Privacy Act apply?

    At the option of the Tribe/Consortium, section 108(b) of Pub. L. 93-
638, as amended, provides that records of the Tribe/Consortium must not 
be considered Federal records for the purposes of the Privacy Act.



Sec. 1000.394  What audit requirements must a self-governance Tribe/Consortium 
follow?

    The Tribe/Consortium must provide to the designated official an 
annual single organization-wide audit as prescribed by the Single Audit 
Act of 1984, 31 U.S.C. 7501, et seq.



Sec. 1000.395  Do OMB circulars and revisions apply to self-governance 
funding agreements?

    Yes, OMB circulars and revisions apply, except for:
    (a) Listed exceptions for Tribes and Tribal Consortia;
    (b) Exceptions in 25 U.S.C. 450j-1(k); and
    (c) Additional exceptions that OMB may grant.



Sec. 1000.396  Does a Tribe/Consortium have additional ongoing requirements 
to maintain minimum standards for Tribe/Consortium management systems?

    Yes, the Tribe/Consortium must maintain management systems that are 
determined to be adequate by an independent audit through the annual 
single agency audit report that is required by the Act and OMB Circular 
A-133.



Sec. 1000.397  Are there any restrictions on how AFA funds may be spent?

    Yes, funds may be spent only for costs associated with programs, 
services, functions, and activities contained in self-governance AFAs.



Sec. 1000.398  May a Tribe/Consortium invest funds received under a 
self-governance agreement?

    Yes, self-governance funds may be invested if such investment is in:
    (a) Obligations of the United States;
    (b) Obligations or securities that are within the limits guaranteed 
or insured by the United States or mutual (or other) funds registered 
with the Securities and Exchange Commission and that only invest in 
obligations of the United States or securities that are guaranteed or 
insured by the United States; or
    (c) Deposits insured by an agency or instrumentality of the United 
States or are fully collateralized to ensure protection of the funds 
even in the event of a bank failure.



Sec. 1000.399  How may interest or investment income that accrues on 
AFAs be used?

    Unless restricted by the AFA, interest or income earned on 
investments or deposits of self-governance awards may be:
    (a) Placed in the Tribe's general fund and used for any purpose 
approved by the Tribe; or
    (b) Used to provide expanded services under the self-governance AFA 
and to

[[Page 1096]]

support some or all of the costs of investment services.



Sec. 1000.400  Can a Tribe/Consortium retain savings from programs?

    Yes, for BIA programs, the Tribe/Consortium may retain savings for 
each fiscal year during which an AFA is in effect. A Tribe/Consortium 
must use any savings that it realizes under an AFA, including a 
construction contract:
    (a) To provide additional services or benefits under the AFA; or
    (b) As carryover; and
    (c) For purposes of this subpart only, programs administered by BIA 
using appropriations made to other Federal agencies, such as the 
Department of Transportation, will be treated in accordance with 
paragraph (b) of this section.



Sec. 1000.401  Can a Tribe/Consortium carry over funds not spent during 
the term of the AFA?

    This section applies to BIA programs, services, functions, or 
activities, notwithstanding any other provision of law. Any funds 
appropriated under the Snyder Act of 1921 (42 Stat. 208), for any fiscal 
year that are not obligated or spent by the end of the fiscal year for 
which they were appropriated shall remain available for obligation or 
expenditure during the following fiscal year. In the case of amounts 
made available to a Tribe/Consortium under an AFA, if the funds are to 
be expended in the succeeding fiscal year for the purpose for which they 
were originally appropriated, contracted or granted, or for which they 
are authorized to be used under the provisions of Sec. 106(a)(3) of the 
Act, no additional justification or documentation of such purposes need 
be provided by the Tribe/Consortium to the Secretary as a condition of 
receiving or expending such funds.



Sec. 1000.402  After a non-BIA AFA has been executed and the funds 

transferred to a Tribe/Consortium, can a bureau request the return 
of funds?

    The bureau may request the return of funds already transferred to a 
Tribe/Consortium only under the following circumstances:
    (a) Retrocession;
    (b) Reassumption;
    (c) Construction, when there are special legal requirements; or
    (d) As otherwise provided for in the AFA.



Sec. 1000.403  How can a person or group appeal a decision or contest an 
action related to a program operated by a Tribe/Consortium under an AFA?

    (a) BIA programs. A person or group who is aggrieved by an action of 
a Tribe/Consortium with respect to programs that are provided by the 
Tribe/Consortium under an AFA must follow Tribal administrative 
procedures.
    (b) Non-BIA programs. Procedures will vary depending on the program. 
Aggrieved parties should initially contact the local program 
administrator (the Indian program contact). Thereafter, appeals will 
follow the relevant bureau's appeal procedures.



Sec. 1000.404  Must self-governance Tribes/Consortia comply with the 

Secretarial approval requirements of 25 U.S.C. 81; 82a; and 476 regarding 
professional and attorney contracts?

    No, for the period that an agreement entered into under this part is 
in effect, the provisions of 25 U.S.C. 81, 82a, and 476, do not apply to 
attorney and other professional contracts by participating Tribes/
Consortia.



Sec. 1000.405  Are AFA funds non-Federal funds for the purpose of meeting 
matching requirements?

    Yes, self-governance AFA funds can be treated as non-Federal funding 
for the purpose of meeting matching requirements under Federal law.



Sec. 1000.406  Does Indian preference apply to services, activities, 
programs, and functions performed under a self-governance AFA?

    Tribal law must govern Indian preference in employment, where 
permissible, in contracting and subcontracting in performance of an AFA.



Sec. 1000.407  Do the wage and labor standards in the Davis-Bacon Act 
apply to Tribes and Tribal Consortia?

    No, wage and labor standards of the Davis-Bacon Act do not apply to 
employees of Tribes and Tribal Consortia.

[[Page 1097]]

They do apply to all other laborers and mechanics employed by 
contractors and subcontractors in the construction, alteration, and 
repair (including painting or redecorating of buildings or other 
facilities) in connection with an AFA.

                             Supply Sources



Sec. 1000.408  Can a Tribe/Consortium use Federal supply sources in the 
performance of an AFA?

    A Tribe/Consortium and its employees may use Federal supply sources 
(including lodging, airline, interagency motor pool vehicles, and other 
means of transportation) that must be available to the Tribe/Consortium 
and to its employees to the same extent as if the Tribe/Consortium were 
a Federal agency. While implementation of this provision is the 
responsibility of the General Services Administration, the Department 
shall assist the Tribe/Consortium to resolve any barriers to full 
implementation that may arise. While implementation of this provision is 
the responsibility of the General Services Administration, the 
Department shall assist the Tribes/Consortia to resolve any barriers to 
full implementation that may arise to the fullest extent possible.

                           Prompt Payment Act



Sec. 1000.409  Does the Prompt Payment Act (31 U.S.C. 3901) apply to a 
non-BIA, non-Indian program AFA?

    Yes, upon mutual agreement of the parties, an AFA may incorporate 
the Prompt Payment Act.



                            Subpart R_Appeals



Sec. 1000.420  What does ``Title-I eligible programs'' mean in this subpart?

    Throughout this subpart, the phrase ``Title I-eligible programs'' is 
used to refer to all programs, functions, services, and activities that 
the Secretary provides for the benefit of Indians because of their 
status as Indians without regard to the agency or office of the 
Department within which the programs, functions, services, and 
activities have been performed.



Sec. 1000.421  What is the purpose of this subpart?

    This subpart prescribes the process Tribes/Consortia may use to 
resolve disputes with the Department arising before or after execution 
of an AFA or compact and certain other disputes related to self-
governance. It also describes the administrative process for reviewing 
disputes related to compact provisions. This subpart describes the 
process for administrative appeals to:
    (a) The Interior Board of Indian Appeals (IBIA) for certain pre-AFA 
disputes;
    (b) The Interior Board of Contract Appeals (IBCA) for certain post-
AFA disputes;
    (c) The Assistant Secretary for the bureau responsible for certain 
disputed decisions;
    (d) The Secretary for reconsideration of decisions involving self-
governance compacts; and
    (e) The agency head for certain pre-award AFA disputes.



Sec. 1000.422  How must disputes be handled?

    (a) The Department encourages its Bureaus to seek all means of 
dispute resolution before the Tribe/Consortium files a formal appeal(s).
    (b) Disputes shall be addressed through government-to-government 
discourse. This discourse must be respectful of government-to-government 
relationships and relevant Federal-Tribal agreements, treaties, judicial 
decisions, and policies pertaining to Indian Tribes.
    (c) Title I-eligible program disputes may use an informal conference 
as set forth in 25 CFR 900.153-157.
    (d) All disputes arising under this rule, including but not limited 
to Title I-eligible program disputes may use non-binding informal 
alternative dispute resolution at the option of the Tribe/Consortium, as 
prescribed in Sec. 402 of this subpart. The Tribe/Consortium may ask 
for this alternative dispute resolution any time before the issuance of 
an initial decision of a formal appeal(s). The appeals timetable will be 
suspended while alternative dispute resolution is pending.

[[Page 1098]]



Sec. 1000.423  Are there any decisions that are not administratively 
appealable under this subpart?

    Yes, the following types of decisions are not administratively 
appealable under this subpart but may be appealable under other 
substantive provisions of the Code of Federal Regulations:
    (a) Decisions relating to planning and negotiation grants (subparts 
C and D of this part) and certain discretionary grants not awarded under 
Title IV (25 CFR part 2);
    (b) Decisions involving a limitation and/or reduction of services 
for BIA programs (subpart H of this part)(25 CFR part 2);
    (c) Decisions regarding requests for waivers of regulations (subpart 
J of this part);
    (d) Decisions regarding construction (subpart K of this part) 
addressed in Sec. 1000.251(b); and
    (e) Decisions under any other statute, such as the Freedom of 
Information Act and the Privacy Act (see 43 CFR part 2).



Sec. 1000.424  Does a Tribe/Consortium have a right to an informal 
conference to resolve any disputes?

    Yes, the Tribe/Consortium may request an informal conference (a non-
binding alternative dispute resolution process). An informal conference 
is a way to resolve both Title I-eligible program and other disputes as 
quickly as possible, without the need for a formal appeal.



Sec. 1000.425  How does a Tribe/Consortium request an informal conference?

    The Tribe/Consortium shall file its request for an informal 
conference with the office of the person whose decision it is appealing, 
within 30 days of the day it receives the decision.
    (a) The Tribe/Consortium may either hand-deliver the request for an 
informal conference to that person's office, fax the request with 
confirmation or mail it by certified mail, return receipt requested.
    (b) If the Tribe/Consortium mails the request, it will be considered 
filed on the date the Tribe/Consortium mailed it by certified mail.



Sec. 1000.426  How is an informal conference held?

    For all purposes relating to these informal conference procedures, 
the parties are the designated representatives of the Tribe/Consortium 
and the bureau.
    (a) The informal conference shall be held within 30 days of the date 
the request was received, unless the parties agree on another date.
    (b) Where practicable, at the option of the Tribe/Consortium, the 
informal conference will be held at the Tribe's/Consortium's office. If 
the meeting cannot be held at the Tribe's/Consortium's office, the 
parties must agree on an alternative meeting place.
    (c) The informal conference shall be conducted by a designated 
representative of the Secretary.
    (d) Only the parties may make presentations at the informal 
conference.
    (e) The informal conference is not a hearing on the record. Nothing 
said during an informal conference may be used by either party in 
litigation.



Sec. 1000.427  What happens after the informal conference?

    (a) Within 10 business days of the informal conference, the person 
who conducted the informal conference shall mail to the Tribe/Consortium 
a brief summary of the informal conference. The summary must include any 
agreements reached or changes from the initial position of the bureau or 
the Tribe/Consortium.
    (b) If in its judgment no agreement was reached, the Tribe/
Consortium may choose to appeal the initial decision, as modified by any 
changes made as a result of the informal conference, under Sec. 
1000.421 of this subpart to the IBIA, bureau head/Assistant Secretary, 
or IBCA.



Sec. 1000.428  How may a Tribe/Consortium appeal a decision made after 
the AFA or compact or amendment to an AFA or compact has been signed?

    With the exception of certain decisions concerning reassumption for 
imminent jeopardy (see Sec. 1000.408 of this subpart), the Tribe/
Consortium may appeal post-award administrative decisions to the IBCA.

[[Page 1099]]



Sec. 1000.429  What statutes and regulations govern resolution of disputes 
concerning signed AFAs or compacts that are appealed to IBCA?

    Section 110 of Pub. L. 93-638 (25 U.S.C. 450 m-1) and the 
regulations at 25 CFR 900.216-900.230 apply to disputes concerning 
signed AFAs and compacts that are appealed to the IBCA, except that any 
references to the Department of Health and Human Services are 
inapplicable. For the purposes of such appeals:
    (a) The terms ``contract'' and ``self-determination contract'' mean 
compacts and AFAs under the Tribal Self-Governance Act; and
    (b) The term ``Tribe'' means ``Tribe/Consortium'.



Sec. 1000.430  To whom are appeals directed regarding reassumption for 
imminent jeopardy?

    Appeals regarding reassumption of Title I-eligible PFSAs are handled 
by the IBIA under those procedures set out in 25 CFR 900.171 through 
900.176. Appeals regarding reassumption of PFSAs that are not Title I-
eligible are handled by the IBCA under those procedures set out in 43 
CFR part 4.



Sec. 1000.431  Does the Equal Access to Justice Act (EAJA) apply to 
appeals under this subpart?

    Yes, EAJA claims against the DOI will be heard by IBIA or IBCA, as 
appropriate, under 43 CFR 4.601 through 4.619, Equal Access to Justice 
Act (Pub. L. No. 96-481, 92 Stat. 2325, as amended), section 504 of 
Title 5 U.S.C. and Section 2412 of Title 28 U.S.C.



Sec. 1000.432  To whom may a Tribe appeal a decision made before the AFA 
or an amendment to the AFA or compact is signed?

    (a) Title I-eligible PFSA pre-award disputes. For Title I--eligible 
PFSA disputes, appeal may only be filed with IBIA under the provisions 
set forth in 25 CFR 900.150(a) through (h), 900.152 through 900.169.
    (b) Other pre-award disputes. For all other pre-award disputes, 
including those involving PFSAs that are not Title I-eligible, appeals 
may be filed with the bureau head/Assistant Secretary or IBIA as noted 
below. However, the Tribe/Consortium may not avail itself of both paths 
for the same dispute.
    (1) Bureau head/Assistant Secretary appeal. Unless the initial 
decision being appealed is one that was made by the bureau head (those 
appeals are forwarded to the appropriate Assistant Secretary--see Sec. 
1000.433(c) of this subpart), the bureau head will decide appeals 
relating to these pre-award matters, that include but are not limited to 
disputes regarding:
    (i) PFSAs that are not Title 1-eligible;
    (ii) Eligibility for the applicant pool of self-governance Tribes;
    (iii) BIA residual functions;
    (iv) Decisions declining to provide requested information as 
addressed in Sec. 1000.172 of this part;
    (v) Allocations of program funds when a dispute arises between a 
Consortium and a withdrawing Tribe; and
    (vi) Inherently Federal functions.
    (2) IBIA appeal. The Tribe/Consortium may choose to forego the 
administrative appeal through the bureau or the Assistant Secretary, as 
described in the paragraph (b)(1) of this section, and instead appeal 
directly to IBIA. The standard of review for such IBIA appeals will be 
an ``abuse of discretion'' standard.



Sec. 1000.433  When and how must a Tribe/Consortium appeal an adverse 
pre-award decision?

    (a) If a Tribe/Consortium wishes to exercise its appeal rights under 
Sec. 1000.432(b)(1), it must make a written request for review to the 
appropriate bureau head within 30 days of receiving the initial adverse 
decision. In addition, the Tribe/Consortium may request the opportunity 
to have a meeting with appropriate bureau personnel in an effort to 
clarify the matter under dispute before a formal decision by the bureau 
head.
    (b) The written request for review should include a statement 
describing its reasons for a review, with any supporting documentation, 
or indicate that such a statement or documentation will be submitted 
within 30 days. A copy of the request must also be sent to the Director 
of the Office of Self-Governance.

[[Page 1100]]

    (c) If the initial decision was made by the bureau head, any appeal 
shall be directed to the appropriate Assistant Secretary. If a Tribe 
does not request a review within 30 days of receipt of the decision, the 
initial decision will be final for the Department.



Sec. 1000.434  When must the bureau head (or appropriate Assistant 
Secretary) issue a final decision in the pre-award appeal?

    Within 30 days of receiving the request for review and the statement 
of reasons described in Sec. 1000.433, the bureau head or, where 
applicable, the appropriate Assistant Secretary must:
    (a) Issue a written final decision stating the reasons for the 
decision; and
    (b) Send the decision to the Tribe/Consortium.



Sec. 1000.435  When and how will the Assistant Secretary respond to 
an appeal by a Tribe/Consortium?

    The appropriate Assistant Secretary will decide an appeal of any 
initial decision made by a bureau head (see Sec. 1000.433). If the 
Tribe/Consortium has appealed the bureau's initial adverse decision of 
the bureau to the bureau head and the bureau head's decision on initial 
appeal is contrary to the Tribe's/Consortium's request for relief, or 
the bureau head fails to make a decision within 30 days of receipt by 
the bureau of the Tribe's/Consortium's initial request for review and 
any accompanying statement and documentation, the Tribe's/Consortium's 
appeal will be sent automatically to the appropriate Assistant Secretary 
for decision. The Assistant Secretary must either concur with the bureau 
head's decision or issue a separate decision within 60 days of receipt 
by the bureau of the Tribe's/Consortium's initial request for review and 
any accompanying statement and documentation. The decision of the 
Assistant Secretary is final for the Department.



Sec. 1000.436  How may a Tribe/Consortium seek reconsideration of the 
Secretary's decision involving a self-governance compact?

    A Tribe/Consortium may request reconsideration of the Secretary's 
decision involving a self-governance compact by sending a written 
request for reconsideration to the Secretary within 30 days of receipt 
of the decision. A copy of this request must also be sent to the 
Director of the Office of Self-Governance.



Sec. 1000.437  When will the Secretary respond to a request for 
reconsideration of a decision involving a self-governance compact?

    The Secretary must respond in writing to the Tribe/Consortium within 
30 days of receipt of the Tribe's/Consortium's request for 
reconsideration.



Sec. 1000.438  May Tribes/Consortia appeal Department decisions to a 
Federal court?

    Yes, Tribes/Consortia may appeal decisions of Department officials 
relating to the self-governance program to an appropriate Federal court, 
as authorized by section 110 of Pub. L. 93-638 (25 U.S.C. 405m-1), or 
any other applicable law.



                     Subpart S_Conflicts of Interest



Sec. 1000.460  What is an organizational conflict of interest?

    (a) An organizational conflict of interest arises when there is a 
direct conflict between the financial interests of the self-governance 
Tribe/Consortium and:
    (1) The financial interests of beneficial owners of Indian trust 
resources;
    (2) The financial interests of the United States relating to trust 
resources, trust acquisitions, or lands conveyed or to be conveyed under 
the Alaska Native Claims Settlement Act 43 U.S. C. 1601 et seq.; or
    (3) An express statutory obligation of the United States to third 
parties. This section only applies if the conflict was not addressed 
when the AFA was first negotiated.
    (b) This section only applies where the financial interests of the 
Tribe/Consortium are significant enough to impair the Tribe's/
Consortium's objectivity in carrying out the AFA, or a portion of the 
AFA.

[[Page 1101]]



Sec. 1000.461  What must a Tribe/Consortium do if an organizational 
conflict of interest arises under an AFA?

    This section only applies if the conflict was not addressed when the 
AFA was first negotiated. When a Tribe/Consortium becomes aware of an 
organizational conflict of interest, the Tribe/Consortium must 
immediately disclose the conflict to the Secretary.



Sec. 1000.462  When must a Tribe/Consortium regulate its employees or 
subcontractors to avoid a personal conflict of interest?

    A Tribe/Consortium must maintain written standards of conduct to 
govern officers, employees, and agents (including subcontractors) 
engaged in functions related to the management of trust assets.



Sec. 1000.463  What types of personal conflicts of interest involving 

tribal officers, employees or subcontractors would have to be regulated 
by a Tribe/Consortium?

    The Tribe/Consortium would need a tribally-approved mechanism to 
ensure that no officer, employee, or agent (including a subcontractor) 
of the Tribe/Consortium reviews a trust transaction in which that person 
has a financial or employment interest that conflicts with that of the 
trust beneficiary, whether the tribe/consortium or an allottee. 
Interests arising from membership in, or employment by, a Tribe/
Consortium or rights to share in a tribal claim need not be regulated.



Sec. 1000.464  What personal conflicts of interest must the standards 
of conduct regulate?

    The personal conflicts of interest standards must:
    (a) Prohibit an officer, employee, or agent (including a 
subcontractor) from participating in the review, analysis, or inspection 
of trust transactions involving an entity in which such persons have a 
direct financial interest or an employment relationship;
    (b) Prohibit such officers, employees, or agents from accepting any 
gratuity, favor, or anything of more than nominal value, from a party 
(other than the Tribe/Consortium) with an in the trust transactions 
under review; and
    (c) Provide for sanctions or remedies for violation of the 
standards.



Sec. 1000.465  May a Tribe/Consortium negotiate AFA provisions on 
conflicts of interest to take the place of this subpart?

    (a) A Tribe/Consortium and the Secretary may agree to AFA 
provisions, concerning either personal or organizational conflicts, 
that:
    (1) Address the issues specific to the program and activities 
contracted; and
    (2) Provide equivalent protection against conflicts of interest to 
these regulations.
    (b) Agreed-upon AFA provisions shall be followed, rather than the 
related provisions of this subpart. For example, the Tribe/Consortium 
and the Secretary may agree that using the Tribe's/Consortium's own 
written code of ethics satisfies the objectives of the personal 
conflicts provisions of subpart, in whole or in part.

 Appendix A to Part 1000--Model Compact of Self-Governance Between The 
                Tribe and the Department of the Interior

                    Article I--Authority and Purpose

                          Section 1--Authority

    This agreement, denoted a compact of Self-Governance (hereinafter 
referred to as the ``compact''), is entered into by the Secretary of the 
Interior (hereinafter referred to as the ``Secretary''), for and on 
behalf of the United States of America under the authority granted by 
Title IV of the Indian Self Determination and Education Assistance Act, 
Pub. L. 93-638, as amended, and by the Tribe, under the authority of the 
Constitution and By-Laws of the Tribe (hereinafter referred to as the 
``Tribe'').

                           Section 2--Purpose

    This compact shall be liberally construed to achieve its purposes:
    (a) This compact is to carry out Self-Governance as authorized by 
Title IV of Pub. L. 93-638, as amended, that built upon the Self 
Governance Demonstration Project, and transfer control to Tribal 
governments, upon Tribal request and through negotiation with the United 
States government, over funding and decision-making of certain Federal 
programs as an effective way to implement the Federal policy of 
government-to-government relations with Indian Tribes.
    (b) This compact is to enable the United States to maintain and 
improve its unique

[[Page 1102]]

and continuing relationship with and responsibility to the Tribe through 
Tribal self-governance, so that the Tribe may take its rightful place in 
the family of governments; remove Federal obstacles to effective self-
governance; reorganize Tribal government programs and services; achieve 
efficiencies in service delivery; and provide a documented example for 
the development of future Federal Indian policy. This policy of Tribal 
self-governance shall permit an orderly transition from Federal 
domination of Indian programs and services to allow Indian Tribes 
meaningful authority to plan, conduct, and administer those programs and 
services to meet the needs of their people. In implementing Self-
Governance, the Bureau of Indian Affairs is expected to provide the same 
level of service to other Tribal governments and to demonstrate new 
policies and methods to improve service delivery and address Tribal 
needs. In fulfilling its responsibilities under the compact, the 
Secretary hereby pledges that the Department will conduct all relations 
with the Tribe on a government-to-government basis.

              Article II--Terms, Provisions and Conditions

                             Section 1--Term

    This compact shall be effective when signed by the Secretary or an 
authorized representative and the authorized representative of the 
Tribe. The term of this compact shall commence [negotiated effective 
date] and must remain in effect as provided by Federal law or agreement 
of the parties.

                        Section 2--Funding Amount

    In accordance with Section 403(g) of Title IV of Pub. L. 93-638, as 
amended, and subject to the availability of appropriations, the 
Secretary shall provide to the Tribe the total amount specified in each 
annual funding agreement.

                     Section 3--Reports to Congress

    To implement Section 405 of Pub. L. 93-638, as amended, on each 
January 1 throughout the period of the compact, the Secretary shall make 
a written report to the Congress that shall include the views of the 
Tribe concerning the matters encompassed by Section 405(b) and (d).

                     Section 4--Regulatory Authority

    The Tribe shall abide by all Federal regulations as published in the 
Federal Register unless waived in accordance with Section 403(i)(2) of 
Pub. L. 93-638, as amended.

               Section 5--Tribal Administrative Procedure

    The Tribe shall provide administrative due process right under the 
Indian Civil Rights Act of 1968, 25 U.S.C. 1301, et seq., to protect all 
rights and interests that Indians, or groups of Indians, may have with 
respect to services, activities, programs, and functions that are 
provided under the compact.

                  Article III--Obligations of the Tribe

                         Section 1--AFA Programs

    The Tribe will perform the programs as provided in the specific AFA 
negotiated under the Act. The Tribe pledges to practice utmost good 
faith in upholding its responsibility to provide such programs, under 
the Act.

            Section 2--Trust Services for Individual Indians

    To the extent that the AFAs have provisions for trust services to 
individual Indians that were formerly provided by the Secretary, the 
Tribe will maintain at least the same level of service as was previously 
provided by the Secretary. The Tribe pledges to practice utmost good 
faith in upholding their responsibility to provide such service.

              Article IV--Obligations of the United States

                     Section 1--Trust Responsibility

    The United States reaffirms the trust responsibility of the United 
States to the ------------ Tribe(s) to protect and conserve the trust 
resources of the Tribe(s) and the trust resources of individual Indians 
associated with this compact and any annual funding agreement negotiated 
under the Tribal Self-Governance Act.

                      Section 2--Trust Evaluations

    Under Section 403(d) of Pub. L. 93-638, as amended, annual funding 
agreements negotiated between the Secretary and an Indian Tribe shall 
include provisions to monitor the performance of trust functions by the 
Tribe through the annual trust evaluation.

                       Article V--Other Provisions

                         Section 1--Facilitation

    Nothing in this compact may be construed to terminate, waive, 
modify, or reduce the trust responsibility of the United States to the 
Tribe(s) or individual Indians. The Secretary shall act in good faith in 
upholding such trust responsibility.

                   Section 2--Officials Not To Benefit

    No Member of Congress, or resident commissioner, shall be admitted 
to any share or part of any annual funding agreement or contract 
thereunder executed under this compact, or to any benefit that may arise 
from such compact. This paragraph may not be construed to apply to any 
contract with a third party entered into under an annual funding 
agreement under this compact if

[[Page 1103]]

such contract is made with a corporation for the general benefit of the 
corporation.

               Section 3--Covenant Against Contingent Fees

    The parties warrant that no person or selling agency has been 
employed or retained to solicit or secure any contract executed under 
this compact upon an agreement or understanding for a commission, 
percentage, brokerage, or contingent fee, excepting bona fide employees 
or bona fide established commercial or selling agencies maintained by 
the contractor for the purpose of securing business.

                      Section 4--Sovereign Immunity

    Nothing in this compact or any AFA shall be construed as--
    (1) affecting, modifying, diminishing, or otherwise impairing the 
sovereign immunity from suit enjoyed by the Tribe; or
    (2) authorizing or requiring the termination of any existing trust 
responsibility of the United States with respect to the Indian people.
    In witness whereof, the parties have executed, delivered and formed 
this compact, effective the -------- day of ------------, 20----.

THE ---------------- Tribe

The Department of the Interior.

By:_____________________________________________________________________

By:_____________________________________________________________________



PART 1001_SELF-GOVERNANCE PROGRAM--Table of Contents




Sec.
1001.1 Purpose.
1001.2 Applicant eligibility.
1001.3 Priority ranking for negotiations.
1001.4 Application review and approval.
1001.5 Application review and selection process for negotiations for 
          funding agreements.
1001.6 Submitting applications.
1001.7 Availability, amount, and number of planning and negotiation 
          grants.
1001.8 Selection criteria for tribes/consortia to receive a negotiation 
          grant.
1001.9 Selection criteria for tribes/consortia seeking advance planning 
          grant funding.
1001.10 Selection criteria for other planning and negotiating financial 
          assistance.

    Authority: 25 U.S.C. 450 note, 458aa-458gg.

    Source: 60 FR 8554, Feb. 15, 1995, unless otherwise noted.



Sec. 1001.1  Purpose.

    The purpose of this rule is to establish the process for tribes to 
apply for entry into the Self-Governance program and to establish the 
selection criteria by which the Department will identify eligible tribes 
and select tribes to begin the negotiations process.



Sec. 1001.2  Applicant eligibility.

    Any tribe or consortium of tribes seeking inclusion in the applicant 
pool must meet the following eligibility criteria:
    (a) Be a federally recognized tribe or a consortium of federally 
recognized tribes as defined in Public Law 93-638.
    (b) Document, with an official action of the tribal governing body, 
a formal request to enter negotiations with the Department of Interior 
(Department) under the Tribal Self-Governance Act authority. In the case 
of a consortium of tribes, the governing body of each participating 
tribe must authorize participation by an official action by the tribal 
governing body.
    (c) Demonstrate financial stability and financial management 
capability by furnishing organization-wide single audit reports as 
prescribed by Public Law 96-502, the Single Audit Act of 1984, for the 
previous three years. These audits must not contain material audit 
exceptions. In the case of tribal consortiums, each signatory to the 
agreement must meet this requirement. Non-signatory tribes participating 
in the consortium do not have to meet this requirement.
    (d) Successfully complete the planning phase for self-governance. A 
final planning report must be submitted which demonstrates that the 
tribe has conducted--
    (1) Legal and budgetary research; and
    (2) Internal tribal government and organizational planning.
    (e) To be included in the applicant pool, tribes or tribal 
consortiums may submit their applications at any time. The application 
should state which year the tribe desires to enter negotiations.



Sec. 1001.3  Priority ranking for negotiations.

    In addition to the eligibility criteria identified above, a tribe or 
consortium of tribes seeking priority ranking for negotiations must 
submit a description of the efforts of the tribe or consortium to seek 
to enter negotiations and/or prepare for operations under the self-

[[Page 1104]]

governance option. This narrative should identify any activities that 
the tribe has pursued, carefully identifying and documenting the dates 
involved, including, but not limited to, the following:
    (a) Prior planning activities related to self-governance, noting the 
source of funding for the planning activity and whether or not it was 
sanctioned by the Office of Self-Governance (OSG), including 
documentation as applicable.
    (b) Prior efforts to secure planning and/or negotiation grants.
    (c) Meetings with the OSG or other Departmental offices in which the 
tribe expressed an interest in participating in the Self-Governance 
Project.
    (d) Correspondence between the tribe and the Department in which the 
tribe has expressed an interest in participating in the Self-Governance 
Project.
    (e) All actions of the tribal governing body related to 
participating in the self-governance option.



Sec. 1001.4  Application review and approval.

    Upon receipt of an application, the OSG will review the package and 
determine whether or not it is complete. Upon determination that it is 
complete, the name of the tribe or consortium will be included in the 
official applicant pool. Incomplete submissions will be returned with 
the deficiencies identified. Revised applications may be resubmitted for 
consideration at any time.



Sec. 1001.5  Application review and selection process for negotiations 
for funding agreements.

    Upon acceptance into the applicant pool, the OSG will assign to each 
tribe or consortium a ranking relative to other applicants based upon 
the date the OSG receives the complete application package. This ranking 
will constitute a master list that will be maintained and updated on a 
continuous basis from year to year. When receipt dates are the same for 
two or more applications, several other factors will be considered in 
determining the placement of the tribe or consortium on the list. These 
factors are identified in priority order as follows:
    (a) Designation by the Congress through report language that a tribe 
should be considered for participation. These designations will be 
considered based upon the actual language of the report.
    (b) Documentation of OSG sanctioning of the tribe's self-governance 
planning and subsequent evidence of actual planning by the tribe.
    (c) Submission of a completed planning or negotiation grant 
application in the previous year.
    (d) A signed agreement pursuant to the Indian Health Service (IHS) 
self-governance project.
    (e) Receipt of a planning grant awarded by the IHS.



Sec. 1001.6  Submitting applications.

    (a) Applications for inclusion in the applicant pool will be 
accepted on an on-going basis.
    (b) Applications may be mailed or hand-delivered.
    (c) Applications for negotiations in 1996 that are mailed must be 
postmarked no later than May 16, 1995.
    (d) Applications must be sent to: Director, Office of Self 
Governance, Department of the Interior, 1849 C Street, NW., MIB RM/MS-
2548, Washington, DC 20240.



Sec. 1001.7  Availability, amount, and number of planning and negotiation 
grants.

    (a) What is the purpose of this section? This section describes how 
to apply for planning and negotiation grants authorized by section 
402(d) of the Act to help meet tribal costs incurred:
    (1) In meeting the planning phase requirement of Pub. L. 103-413, 
including planning to negotiate non-BIA programs, services, functions 
and activities; and
    (2) In conducting negotiations.
    (b) What types of grants are available? Three categories of grants 
may be available:
    (1) Negotiation grants for tribes/consortia selected from the 
applicant pool as described in Sec. 1001.5 of these regulations;
    (2) Planning grants for tribes/consortia requiring advance funding 
to

[[Page 1105]]

meet the planning phase requirement of Pub. L. 103-413; and
    (3) Financial assistance for tribes/consortia to plan for 
negotiating for non-BIA programs, services, functions and activities, as 
described in Sec. 1001.10.
    (c) Will grants always be made available to meet the planning phase 
requirement as described in section 402(d) of Pub. L. 103-413? No. 
Grants to cover some or all of the planning costs that a tribe/
consortium may incur may be made available depending upon the 
availability of funds appropriated by Congress. We will publish notice 
of availability of grants in the Federal Register as described in this 
section.
    (d) May a tribe use its own resources to meet its planning and 
negotiation expenses in preparation for entering into self-governance? 
Yes. A tribe/consortium may use its own resources to meet these costs. 
Receiving a grant is not necessary to meet the planning phase 
requirement of the Act or to negotiate a compact and annual funding 
agreement.
    (e) What happens if there are insufficient funds to meet the 
anticipated tribal requests for planning and negotiation grants in any 
given year? If appropriated funds are available but insufficient to meet 
the total requests from tribes/consortia, we will give first priority to 
those that have been selected from the applicant pool to negotiate an 
annual funding agreement. We will give second priority to tribes/
consortia that require advance funds to meet the planning requirement 
for entry into the self-governance program. We will give third priority 
to tribes/consortia that require negotiation/planning funds to negotiate 
for DOI non-BIA programs.
    (f) How many grants will the Department make each year and what 
funding will be available? The number and size of grants awarded each 
year will depend on Congressional appropriations and tribal interest. 
Each year, we will publish a notice in the Federal Register which 
provides relevant details about the application process, including: The 
funds available, timeframes, and requirements for negotiation and 
advance planning specified in this part.

[61 FR 17831, Apr. 23, 1996]



Sec. 1001.8  Selection criteria for tribes/consortia to receive a 
negotiation grant.

    (a) Who may be selected to receive a negotiation grant? Any tribe/
consortium that has been accepted into the applicant pool in accordance 
with Sec. 1001.5 and has been selected to negotiate a self-governance 
annual funding agreement is eligible to apply for a negotiation grant. 
Each year, we will publish a notice in the Federal Register with all 
relevant details as to how tribes/consortia which have been selected can 
apply for negotiation grants.
    (b) What must a tribe/consortium do to receive a negotiation grant?
    (1) To receive a negotiation grant, a tribe/consortium must:
    (i) Be selected from the applicant pool to negotiate an annual 
funding agreement;
    (ii) Be identified as eligible to receive a negotiation grant; and
    (iii) Not have received a negotiation grant within the 3 years 
preceding the date of the latest Federal Register announcement described 
in Sec. 1001.7.
    (2) The tribe/consortium must submit a letter affirming its 
readiness to negotiate and formally request a negotiation grant to 
prepare for and negotiate a self-governance agreement. These grants are 
not competitive.
    (c) May a selected tribe negotiate without applying for a 
negotiation grant? Yes. In this case, the tribe should notify us in 
writing so that funds can be reallocated for other grants.

[61 FR 17832, Apr. 23, 1996]



Sec. 1001.9  Selection criteria for tribes/consortia seeking advance 
planning grant funding.

    (a) Who is eligible to apply for a planning grant that will be 
awarded before a tribe/consortium is admitted into the applicant pool? 
Any tribe/consortium that is not a self-governance tribe and needs 
advance funding in order to complete the planning phase requirement may 
apply. Tribes/consortia that have received a planning grant within 3 
years preceding the date of the latest Federal Register announcement 
described in Sec. 1001.7 are not eligible.

[[Page 1106]]

    (b) What must a tribe/consortium seeking a planning grant submit in 
order to meet the planning phase requirements? A tribe/consortium must 
submit the following material:
    (1) A tribal resolution or other final action of the tribal 
governing body indicating a desire to plan for tribal self-governance;
    (2) Audits from the last 3 years which document that the tribe meets 
the requirement of being free from any material audit exception;
    (3) A proposal that describes the tribe's/consortium's plans to 
conduct:
    (i) Legal and budgetary research, and
    (ii) Internal tribal government and organization planning;
    (4) A timeline indicating when planning will start and end; and
    (5) Evidence that the tribe/consortium can perform the tasks 
associated with its proposal (i.e., submit resumes and position 
descriptions of key staff or consultants to be used).
    (c) How will tribes/consortia know when and how to apply for 
planning grants? Each year, we will publish in the Federal Register a 
notice of the availability of planning grants for additional tribes as 
described in Sec. 1001.7. This notice will identify the specific 
details for applying.
    (d) What criteria will be used to award planning grants to those 
tribes/consortia requiring advance funding to meet the planning phase 
requirement of Public Law 103-413? Advance planning grants are 
discretionary and based on need. The following criteria will be used to 
determine whether to award a planning grant to a tribe/consortium before 
the tribe is being selected into the applicant pool:
    (1) A complete application as described in Sec. Sec. 1001.9(b) and 
1001.9(c);
    (2) A demonstration of financial need. We will rank applications 
according to the percentage of tribal resources to total resources as 
indicated in the latest A-128 audit. We will give priority to 
applications that demonstrate financial need by having a lower level of 
tribal resources as a percent of total resources; and
    (3) Other factors that demonstrate the readiness of the tribe/
consortium to enter into a self-governance agreement, including previous 
efforts of the tribe/consortium to participate in self-governance.
    (e) Can tribes/consortia that receive advance planning grants also 
apply for a negotiation grant? Yes. Tribes/consortia that receive 
advance planning grants may submit a completed application to be 
included in the applicant pool. Once approved for inclusion in the 
applicant pool, the tribe/consortium may apply for a negotiation grant 
according to the process identified in Sec. 1001.7 above.
    (f) When and how will a tribe/consortium know whether it has been 
selected to receive an advance planning grant? Within 30 days of the 
deadline for submitting applications we will notify the tribe/consortium 
by letter whether it has been selected to receive an advance planning 
grant.

[61 FR 17832, Apr. 23, 1996]



Sec. 1001.10  Selection criteria for other planning and negotiating 
financial assistance.

    (a) What is the purpose of this section? This section describes how 
to apply for other financial assistance for planning and negotiating of 
a DOI non-BIA program, service, function or activity that may be 
available, as well as the selection process.
    (b) Are there other funds that may be available to self-governance 
tribes/consortia for planning and negotiating with DOI non-BIA bureaus? 
Yes. Tribes/consortia may contact the Director, Office of Self-
Governance to determine if funds are available for the purpose of 
planning and negotiating with DOI non-BIA bureaus under this section. A 
tribe/consortium may also request information from a DOI non-BIA bureau 
on any funds which may be available from that bureau.
    (c) Who is eligible to apply for financial assistance to plan and 
negotiate for a DOI non-BIA program? Any existing self-governance tribe/
consortium is eligible.
    (d) Under what circumstances may planning and negotiation financial 
assistance be made available to tribes/consortia? At the discretion of 
the Director, grants may be awarded when requested by the tribe and 
coordinated with the DOI non-BIA agency involved.

[[Page 1107]]

    (e) How does the tribe/consortium apply for a grant to plan and 
negotiate for a DOI non-BIA program? When such funds are available, we 
will publish a notice of their availability and a deadline for 
submitting applications for such grants in the Federal Register as 
indicated in Sec. 1001.7.
    (f) What must be included in the application? The application must 
include the following:
    (1) The tribal resolution or other final action of the tribal 
governing body indicating that the tribe/consortium intends to negotiate 
for a DOI non-BIA program;
    (2) A copy of the proposal or summary that was submitted to the DOI 
non-BIA bureau;
    (3) A time line indicating when planning will begin and end;
    (4) The planning resources from all other sources that are approved 
and/or anticipated for the planning activity; and
    (5) The amount requested and a justification of why it is needed by 
the tribe/consortium.
    (g) What criteria will we use to award grants to those tribes/
consortia requesting financial assistance to plan and negotiate for a 
DOI non-BIA program? The award of such grants is discretionary. After 
consulting with the requesting tribe/consortium and the appropriate DOI 
non-BIA bureau, the Director will determine whether to award a grant to 
plan and negotiate for a DOI non-BIA program. The determination will be 
based upon the complexity of the project, the availability of resources 
from all other sources, and the relative need of the tribe/consortium to 
receive such funds for the successful completion of the planning and 
negotiating activity, as determined by the percentage of tribal 
resources to total resources as indicated in the latest A-128 audit. All 
decisions to award or not to award grants as described in paragraphs (e) 
and (f) of this section are final for the Department.

[61 FR 17832, Apr. 23, 1996]

[[Page 1109]]