[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.
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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.
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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,
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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