2010-13297. Indian Self-Determination Act Contracts and Annual Funding Agreements-Appeal Procedures

AGENCIES:

Bureau of Indian Affairs, Interior; Indian Health Service, Health and Human Services.

ACTION:

Final rule.

SUMMARY:

The Bureau of Indian Affairs (BIA) in the Department of the Interior (DOI) and the Indian Health Service (IHS) in the Department of Health and Human Services (HHS) are making limited technical amendments to their joint regulations governing contracts and annual funding agreements under the Indian Self-Determination and Education Assistance Act to update the appeals procedures.

DATES:

This rule is effective July 6, 2010.

FOR FURTHER INFORMATION CONTACT:

 

—Terrence Parks, Acting Chief, Division of Self-Determination, Office of Indian Services, Bureau of Indian Affairs, Department of the Interior, 1849 C Street, NW., Mail Stop 4513, Washington, DC 20240, telephone [phone];

—Sharee M. Freeman, Director, Office of Self-Governance, Office of the Assistant Secretary—Indian Affairs, Department of the Interior, 1951 Constitution Avenue, NW., Mail Stop 355, Washington, DC 20240, telephone [phone];

—Betty Gould, Regulations Officer, Indian Health Service, Department of Health and Human Services, 12300 Twinbrook Parkway, Suite 450, Rockville, MD 20857, telephone [phone].

Persons who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

A. Board of Contract Appeals

In 25 CFR parts 900 and 1000, BIA and IHS have promulgated regulations governing contracts and annual funding agreements with Indian tribes under the Indian Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 450f-450n, 458aa-458aaa-18. Included in those regulations are procedures allowing for appeals to the Interior Board of Contract Appeals, pursuant to 25 U.S.C. 450m-1(d), 458ff(c), and the Contract Disputes Act, 41 U.S.C. 601-613.

Effective January 6, 2007, Congress abolished the Interior Board of Contract Appeals (IBCA) and transferred its functions—including appeals under 25 CFR Parts 900 and 1000—to a new Civilian Board of Contract Appeals (CBCA) within the General Services Administration (GSA). Public Law 109-163, section 847, 119 Stat, 3391 (2006); see 71 FR 65825 (Nov. 9, 2006). BIA and IHS are therefore revising their regulations to substitute references to CBCA for IBCA in three sections in Part 900 and five sections in Part 1000. Procedures applicable to appeals to CBCA were published by GSA at 48 CFR part 6101, 72 FR 36794 (July 5, 2007), and are referenced in revised 25 CFR 900.216(b) and 1000.430.

IHS previously published its own final rule amending 25 CFR 900.222 to change the name and address of the appeals board from IBCA to CBCA and amending 25 CFR 900.229 to change references to IBCA to CBCA. 71 FR 76600 (Dec. 21, 2006). However, the IHS rule failed to change references to “U.S. Department of the Interior” and “IBCA” in § 900.222(e), and it did not amend §§ 900.6 and 900.216, which continue to refer to IBCA. This rule completes the changes to Part 900 that IHS initiated with its December 2006 rule, and it makes similar changes to Part 1000.

B. Equal Access to Justice Act

Additional technical changes are being made to the regulations in Parts 900 and 1000 dealing with the Equal Access to Justice Act (EAJA), 5 U.S.C. 504. First, section 900.177 currently provides that EAJA claims against either DOI or HHS will be heard by the Interior Board of Indian Appeals (IBIA) under 43 CFR 4.601 through 4.619. This is only partially correct. While some EAJA claims against DOI are heard by IBIA, most are heard initially by administrative law judges (ALJs) within DOI, with a right of appeal to IBIA. Most EAJA claims against HHS are also heard initially by ALJs within DOI, with a right of appeal to the HHS Departmental Appeals Board.

To eliminate the apparent inconsistency between section 900.177 and the referenced DOI EAJA regulations over who initially decides EAJA claims, this rule removes the phrase “by the IBIA” from § 900.177. As a result, EAJA claims against either DOI or HHS will be heard initially by the adjudicative officer who decided the merits, whether an ALJ or IBIA, consistent with DOI's EAJA regulations. For claims against DOI, appeals from an ALJ's decision will be decided by IBIA under 43 CFR part 4, subpart D, as provided in 43 CFR 4.626(a). For claims against HHS, appeals from an ALJ's decision will be decided by the HHS Departmental Appeals Board under 45 CFR part 13.

In a future rulemaking, HHS will propose applying its EAJA regulations at 45 CFR part 13 to an EAJA claim against HHS, so that the HHS regulations apply to both the claim and the appeal. Additionally, the future rule would delete the reference in § 900.177 to 25 CFR 900.165(b) because that paragraph merely refers to the statement of the appeal option that must be contained in the recommended decision.

Second, this rule updates the references to DOI's EAJA regulations in § 900.177 from 43 CFR 4.601 through 4.619 to 43 CFR 4.601 through 4.628 to reflect amendments to those EAJA regulations published in 2006. See 71 FR 6364 (Feb. 8, 2006).

Third, this rule updates the references in § 900.216(c) to the applicable EAJA regulations. Now that CBCA, rather than IBCA, will be deciding EAJA claims in post-award disputes, the CBCA procedural regulations at 48 CFR 6101.30 and 6101.31 will apply. But since those regulations do not contain provisions regarding eligibility for an award, the standards for an award, and allowable fees and expenses, the substantive EAJA regulations at 43 CFR 4.602 and 4.604 through 4.606 (DOI) and 45 CFR 13.4 through 13.7 (HHS) will continue to apply. See Tidewater Contractors, Inc. v. Department of Transportation, No. CBCA 982-C, 2008 WL 2718917 (Civilian B.C.A.) (July 10, 2008), slip op. at 5 (CBCA looked to Department of Transportation regulations for allowable attorney fee rate).

Corresponding revisions are made to 25 CFR 1000.431.

C. Cross References

Finally, this rule corrects a number of cross references in Part 900. The notice of appeal rights in section 900.156(b) refers in two places to 25 CFR 900.157, when the correct reference is 25 CFR 900.158 (compare section 900.152). The notices of appeal rights in section 900.165(b) and (c) both contain meaningless references to those sections, when the correct reference is 25 CFR 900.166.

The notices of appeal rights in § 900.172(b) and (c) repeat the references from § 900.165(b) and (c); but § 900.172 is dealing with emergency reassumptions, while § 900.165 is dealing with non-emergency reassumptions. The correct reference in § 900.172(b) and (c) is 25 CFR 900.173.

Similarly, § 900.253(b) refers to 25 CFR 900.160 and 900.161; but § 900.253(b) is dealing with emergency reassumptions, while §§ 900.160 and 900.161 are dealing with non-emergency reassumptions. The correct reference in § 900.253(b) is 25 CFR 900.171.

II. Procedural Requirements

A. Determination To Issue Final Rule Without Prior Notice and Comment.

BIA and IHS have determined that the public notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not apply to this rulemaking because the changes being made relate solely to matters of agency organization, procedure, and practice. They therefore satisfy the exemption from notice and comment rulemaking in 5 U.S.C. 553(b)(A).

B. Review Under Procedural Statutes and Executive Orders

BIA and IHS have reviewed this rule under the following statutes and executive orders governing rulemaking procedures: the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.; the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.; the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq.; the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.; the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.; the Information Quality Act, Public Law 106-554; Executive Order 12630 (Takings); Executive Order 12866 (Regulatory Planning and Review); Executive Order 12988 (Civil Justice Reform); Executive Order 13132 (Federalism); Executive Order 13175 (Tribal Consultation); and Executive Order 13211 (Energy Impacts). BIA and IHS have determined that this rule does not trigger any of the procedural requirements of those statutes and executive orders, since this rule merely updates the Indian Self-Determination and Education Assistance Act regulations to refer to the correct appeal entities and revised EAJA regulations and to correct various cross references.

List of Subjects

25 CFR Part 900

• Administrative practice and procedure
• Buildings and facilities
• Claims
• Government contracts
• Government property management
• Grant programs-Indians
• Health care
• Indians
• Indians-business and finance

25 CFR Part 1000

• Grant programs-Indians
• Indians

For the reasons stated in the preamble, BIA and IHS amend their regulations in 25 CFR parts 900 and 1000 as follows:

PART 900—CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT

1. The authority citation for part 900 continues to read as follows:

Authority: 25 U.S.C. 450f et seq.

Subpart B—Definitions

2. In § 900.6, revise the definition of “Contract appeals board” to read as follows:

§ 900.6

Definitions.

* * * * *

Contract appeals board means the Civilian Board of Contract Appeals (CBCA).

* * * * *

Subpart L—Appeals

§ 900.156

[Amended]

3. In § 900.156(b), remove the reference “ 25 CFR 900.157” and add in its place “25 CFR 900.158” wherever it appears.

§ 900.165

[Amended]

4. In § 900.165(b), remove the reference “ 25 CFR 900.165(b)” and add in its place “25 CFR 900.166”wherever it appears.

5. In § 900.165(c), remove the reference “ 25 CFR 900.165(c)” and add in its place “25 CFR 900.166” wherever it appears.

§ 900.172

[Amended]

6. In § 900.172(b), remove the reference “ 25 CFR 900.165(b)” and add in its place “25 CFR 900.173” wherever it appears.

7. In § 900.172(c), remove the reference “ 25 CFR 900.165(c)” and add in its place “25 CFR 900.173” wherever it appears.

8. Revise § 900.177 to read as follows:

§ 900.177

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

Yes. EAJA claims against DOI or HHS will be heard under 43 CFR 4.601 through 4.628. For HHS, appeals from an EAJA award will be according to 25 CFR 900.165(b).

Subpart N—Post-Award Contract Disputes

9. Revise § 900.216(b) and (c) to read as follows:

§ 900.216

What other statutes and regulations apply to contract disputes?

* * * * *

(b) If the matter is submitted to the CBCA, 48 CFR part 6101; and

(c) The Equal Access to Justice Act (EAJA), 5 U.S.C. 504 and 28 U.S.C. 2412, and regulations at 48 CFR 6101.30, 6101.31 (CBCA), 43 CFR 4.602, 4.604 through 4.628 (DOI), and 45 CFR 13.4 through 13.7 (HHS).

10. Revise § 900.222(e) to read as follows:

§ 900.222

What goes into a decision?

* * * * *

(e) Contain the following language:

This is a final decision. You may appeal this decision to the Civilian Board of Contract Appeals (CBCA), 1800 F Street, NW., Washington, DC 20245. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the CBCA and provide a copy to the individual from whose decision the appeal is taken. The notice must indicate that an appeal is intended, and refer to the decision and contract number. Instead of appealing to the CBCA, you may bring an action in the U.S. Court of Federal Claims or in the United States District Court within 12 months of the date you receive this notice.

§ 900.253

[Amended]

11. Revise § 900.253(b) to read as follows:

* * * * *

(b) A statement explaining the contractor's right to a hearing on the record under § 900.171 within 10 days of the emergency reassumption or such later date as the contractor may approve;

* * * * *

PART 1000—ANNUAL FUNDING AGREEMENTS UNDER THE TRIBAL SELF-GOVERNMENT ACT AMENDMENTS TO THE INDIAN SELF-DETERMINATION AND EDUCATION ACT

12. The authority citation for part 1000 continues to read as follows:

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

Subpart R—Appeals

13. Revise § 1000.421(b) to read as follows:

§ 1000.421

What is the purpose of this subpart?

* * * * *

(b) The Civilian Board of Contract Appeals (CBCA) for certain post-AFA disputes;

* * * * *

§ 1000.428

[Amended]

14. In § 1000.428, remove “IBCA” and add in its place “CBCA”.

15. In § 1000.429, revise the section heading and introductory text to read as follows:

§ 1000.429

What statutes and regulations govern resolution of disputes concerning signed AFAs or compacts that are appealed to the CBCA?

Section 110 of Public Law 93-638 (25 U.S.C. 450m-l) and the regulations at 25 CFR 900.216 through 900.230 apply to disputes concerning signed AFAs and compacts that are appealed to the CBCA, except that any references to the Department of Health and Human Services are inapplicable. For purposes of such appeals:

* * * * *

16. Revise § 1000.430 to read as follows:

§ 1000.430

Who handles appeals regarding reassumption for imminent jeopardy?

Appeals regarding reassumption of Title I-eligible PFSAs are handled by the IBIA under the procedures in 25 CFR 900.171 through 900.176. Appeals regarding reassumption of PFSAs that are not Title I-eligible are handled by the CBCA under the procedures in 48 CFR part 6101.

17. Revise § 1000.431 to read as follows:

§ 1000.431

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

Yes. EAJA claims against the DOI will be heard under 48 CFR 6101.30, 6101.31 (CBCA) and 43 CFR 4.602, 4.604 through 4.628 (DOI) and under the Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412.

Dated: October 30, 2009.

Larry Echo Hawk,

Assistant Secretary, Indian Affairs, Department of the Interior.

Dated: May 24, 2010.

Yvette Roubideaux,

Director, Indian Health Service, Department of Health and Human Services.