98-3132. Tribal Self-Governance

[Federal Register Volume 63, Number 29 (Thursday, February 12, 1998)]
[Proposed Rules]
[Pages 7202-7251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3132]

[[Page 7201]]

_______________________________________________________________________

Part II

Department of the Interior

_______________________________________________________________________

Bureau of Indian Affairs

_______________________________________________________________________

25 CFR Part 1000

Tribal Self-Governance; Proposed Rule

Federal Register / Vol. 63, No. 29 / Thursday, February 12, 1998 /
Proposed Rules

[[Page 7202]]

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 1000

RIN 1076-AD20

Tribal Self-Governance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule with request for comments.

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SUMMARY: This is a proposed rule to implement tribal Self-Governance,
as authorized by Title IV of the Indian Self-Determination and
Education Assistance Act. This proposed rule has been negotiated among
representatives of Self-Governance and non-Self-Governance Tribes and
the U.S. Department of the Interior. The intended effect is to transfer
to participating tribes control of, funding for, and decision making
concerning certain federal programs.

DATES: Comments must be received by May 13, 1998.

ADDRESSES: Comments regarding this proposed rule should be directed to:
William Sinclair, Director, Office of Self-Governance, MS-2542 MIB,
1849 C Street NW, Washington, DC, 20240; telephone: 202-219-0240;
electronic mail: [email protected]

FOR FURTHER INFORMATION CONTACT: Questions concerning this proposed
rule should be directed to: William Sinclair, Director, Office of Self-
Governance, MS-2542 MIB, 1849 C Street NW, Washington, DC, 20240;
telephone: 202-219-0240; electronic mail: [email protected]

SUPPLEMENTARY INFORMATION: These draft regulations are to implement
Title II of Pub. L. 103-413, the Indian Self-Determination Act
Amendments of 1994. This Act established the Tribal Self-Governance
program on a permanent basis and was added as Title IV (Tribal Self
Governance Act of 1994) of the Indian Self-Determination and Education
Assistance Act of 1975 (the ISDEA) (Pub. L. 93-638). Title I of Pub. L.
103-413 consisted of amendments to the self-determination contracting
provision of the ISDEA and regulations for Title I of Pub. L. 103-413
have already been promulgated. When Pub. L. 93-638 is mentioned in
these proposed regulations, it generally refers to what are now
Sections 109 and Title I of the ISDEA, as amended.
The ISDEA has been amended by Congress by the following:

Pub. L. 98-250 Technical Amendments to Indian Self-Determination and
Education Assistance Acts, April 3, 1984;
Pub. L. 100-202 Continuing Appropriations, Fiscal year 1988, December
22, 1987;
Pub. L. 100-446 Department of the Interior and Related Agencies
Appropriations Act, 1989, September 27, 1988;
Pub. L. 100-472 Indian Self-Determination And Education Assistance Act
Amendments of 1988, October 5, 1988;
Pub. L. 100-581 Review of Tribal Constitutions and Bylaws, November 1,
1988;
Pub. L. 101-301 Indian Law: Miscellaneous Amendments, May 24, 1990;
Pub. L. 101-512 Department of the Interior and Related Agencies
Appropriations Act, 1991, November 5, 1990;
Pub. L. 101-644 Indian Arts and Crafts Act of 1990, November 29, 1990
Pub. L. 102-184 Tribal Self-Governance Demonstration Project Act,
December 4, 1991;
Pub. L. 103-413 Indian Self-Determination Act Amendments of 1994,
October 25, 1994;
Pub. L. 103-435 Indian Technical Corrections, November 2, 1994;
Pub. L. 104-109 Technical Corrections to Law Relating to Native
Americans, February 12, 1996;
Pub. L. 104-208 Omnibus Appropriations Act, September 30, 1996

Since most of the legal citations are to Pub. L. 103-413, the
Indian Self-Determination Act Amendments of 1994, the following table
may be used to find pertinent parts of this act in 25 U.S.C.:

------------------------------------------------------------------------
Section of Pub. L. 103-413 25 U.S.C. part
------------------------------------------------------------------------
Sections 202, 203 and 401................. 25 U.S.C. 458aa
Section 402............................... 25 U.S.C. 458bb
Section 403............................... 25 U.S.C. 458cc
Section 404............................... 25 U.S.C. 458dd
Section 405............................... 25 U.S.C. 458ee
Section 406............................... 25 U.S.C. 458ff
Section 407............................... 25 U.S.C. 458gg
Section 408............................... 25 U.S.C. 458hh
------------------------------------------------------------------------

The following table may be used to find the pertinent parts of 93-
638, the ISDEA:

------------------------------------------------------------------------
Section of Pub. L. 93-638 25 U.S.C. part
------------------------------------------------------------------------
Section 3................................. 25 U.S.C. 450a
Section 4................................. 25 U.S.C. 450b
Section 5................................. 25 U.S.C. 450c
Section 6................................. 25 U.S.C. 450d
Section 9................................. 25 U.S.C. 450e-1
Section 102............................... 25 U.S.C. 450f
Section 103............................... 25 U.S.C. 450h
Section 104............................... 25 U.S.C. 450i
Section 105............................... 25 U.S.C. 450j
Section 106............................... 25 U.S.C. 450j-1
Section 107............................... 25 U.S.C. 450k
Section 108............................... 25 U.S.C. 450l
Section 109............................... 25 U.S.C. 450m
Section 110............................... 25 U.S.C. 450m-1
Section 111............................... 25 U.S.C. 450n
------------------------------------------------------------------------

The Indian Self-Determination Act Amendments of 1988 (Pub. L. 100-
472), authorized the Tribal Self-Governance Demonstration Project for a
5-year period and directed the Secretary to select up to 20 tribes to
participate. The purpose of the demonstration project was to transfer
to participating tribes the control of, funding for, and decision
making concerning certain federal programs, services, functions and
activities or portions thereof. In 1991, there were 7 annual funding
agreements under the project, and this expanded to 17 in 1992. In 1991,
the demonstration project was extended for an additional 3 years and
the number of tribes authorized to participate was increased to 30
(Pub. L. 102-184). The number of Self-Governance agreements increased
to 19 in 1993 and 28 in 1994. The 28 agreements in 1994 represented
participation in self-governance by 95 tribes authorized to
participate.
After finding that the Demonstration Project had successfully
furthered tribal self-determination and self-governance, Congress
enacted the ``Tribal Self-Governance Act of 1994,'' Public Law 103-413
which was signed by the President on October 25, 1994. The Tribal Self-
Governance Act of 1994 made the Demonstration Project a permanent
program and authorized the continuing participation of those tribes
already in the program.
A key feature of the 1994 Act included the authorization of up to
twenty tribes per year in the program, based on their successfully
completing a planning phase, being duly authorized by the tribal
government body and demonstrating financial stability and management
capability. The Act was amended by Public Law 104-208 on September 30,
1996, to allow up to 50 tribes annually to be selected from the
applicant pool. In 1996, the Act was also amended by Public Law 104-
109, ``An Act to make certain technical corrections and law related to
Native Americans''. Section 403 was amended to say the following:

(1) INCORPORATE SELF-DETERMINATION PROVISIONS,--At the option of
a participating tribe or tribes, any

[[Page 7203]]

or all provisions of title I of this Act shall be made part of an
agreement entered into under title III of this Act or this title.
The Secretary is obligated to include such provisions at the option
of the participating tribe or tribes. If such provision is
incorporated, it shall have the same force and effect as if set out
in full in title III or this title.

The number of annual funding agreements grew by one to 29 in 1995
and grew to 53 and 60 agreements in 1996 and 1997, respectively, to
include 180 and 202 tribes, respectively, either individually or
through consortium of tribes.
The Tribal Self-Governance Act of 1994, as amended, authorizes the
following things: (1) The director of the Office of Self-Governance may
select up to 50 tribes annually from the applicant pool to participate
in Tribal Self-Governance. (2) To be a member of the applicant pool
each tribe must have: (a) Successfully completed a planning phase that
includes budgetary research and internal tribal government planning and
organizational preparation; (b) have requested to participate in Self-
Governance by resolution; and (c) have demonstrated for the previous 3
fiscal years financial stability and financial management capability as
evidenced by the tribe having no material audit exceptions in their
required annual audits of Self-Determination contracts. (3) The
Secretary is to negotiate and enter into annual written funding
agreements with the governing body of each participating tribe that
will allow that tribe to plan, conduct, consolidate and administer
programs that were administered by the Bureau of Indian Affairs without
regard to agency or office within which such programs were
administered. Subject to such terms of the agreement, the tribes are
also authorized to redesign or consolidate programs and reallocate
funds. (4) The Secretary is to negotiate annual funding agreements with
tribes for programs administered by the Department other than through
BIA that are otherwise available to Indian tribes. Annual funding
agreements may also include programs from non-BIA bureaus that have a
special geographic, historic or cultural significance to the
participating tribe. (5) Tribes may retrocede all or a portion of the
programs. (6) For construction projects, the parties may negotiate for
inclusion in AFAs specific provisions of the Office of Federal
Procurement and Policy Act and Federal Acquisition Regulations. If not
included, then such provisions do not apply. (7) Not later than 90 days
before the effective date of the agreements, the agreements are to be
sent to the Congress and to potentially affected tribes. (8) Funding
agreements shall provide for advance payments to the tribes of amounts
equal to what the tribe would be eligible to receive under contracts
and grants under this Act. This is to include direct program and
contract support costs in addition to any funds that are specifically
or functionally related to the provision of benefits and services by
the Secretary to the tribe or its members without regard to the
organizational level within the Department where such functions are
provided. (9) Except as otherwise provided by law, the Secretary shall
interpret laws and regulations in a manner that will facilitate the
inclusion of programs and the implementation of the agreements. (10)
The Secretary has 60 days from the receipt of a tribal request for a
waiver of Departmental regulations in which to approve or deny such a
request; denial can only be based upon a finding that such a waiver is
prohibited by federal law. (11) An annual report is to be submitted to
the Congress regarding, among other things, the identification of the
costs and benefits of Self-Governance and the independent views of the
participating tribes. The Secretary is to publish in the Federal
Register, after consultation with the tribes, a list of, and
programmatic targets for, non-BIA programs eligible for inclusion in
AFA's. (12) Nothing in the Act shall be construed to limit or reduce in
any way the services, contracts or funds that any other Indian tribes
or tribal organizations are eligible to receive under any applicable
federal law or diminish the Secretary's trust responsibility to Indian
tribes, individual Indian or Indians with trust allotments.
The Act also authorized the formation of a negotiated rulemaking
committee if so requested by a majority of the Indian tribes with Self-
Governance agreements. Such a request was made to the Department of the
Interior and a rule making committee was formed. Pursuant to section
407 of the Act, membership was restricted to federal and tribal
government representatives, with a majority of the tribal members
representing tribes with agreements under the Act. Eleven tribal
representatives joined the committee. Seven tribal representatives were
from tribes with Self-Governance agreements and 4 were from tribes that
were not in Self-Governance. Formation of the rulemaking committee was
announced in the Federal Register on February 15, 1995.
The first meeting of the Joint Tribal/Federal Self-Governance
Negotiated Rule Making Committee was held in Washington, DC on May 18,
1995. A total of 12 meetings of the full committee were held in
different locations throughout the country. The last meeting was held
in Washington, DC on May 15 and 16, 1997. There were numerous workgroup
meetings and teleconferences during this period that were used to
develop draft material and exchange information in support of the full
committee meetings.
At the first meeting of the Committee, protocols were developed.
The main provisions of the protocols were: (1) The Committee meetings
were open, and minutes kept. The Federal Advisory Committee Act did not
apply pursuant to the Unfunded Mandates Reform Act of 1995. (2) A
quorum consisted of 8 members, including 7 tribal members and one
federal member. The tribal and federal representatives each selected
co-chairs for the Committee and an alternate. (3) The Committee
operated by consensus of the federal and tribal members and formed five
working groups to address specific issues and make recommendations to
the Committee. (4) The intended product of the negotiations is proposed
regulations developed by the Committee on behalf of the Secretary and
tribal representatives. The Secretary agreed to use the preliminary
report and the proposed regulations, developed by the Committee, as the
basis for the Notice of Proposed Rulemaking. (5) The Committee will
review all comments received from the notice of the Proposed Rulemaking
and submit a final report with recommendations to the Secretary for
promulgation of a final rule. Any modifications that the Secretary
proposes prior to the final rule shall be provided to the Committee
with notice and an opportunity to comment. (6) The Federal Mediation
and Conciliation Services was used to facilitate meetings.
At the conclusion of the May 15 and 16, 1997 negotiation session,
there were a number of provisions on which no agreement could be
reached.

Key Areas of Disagreement

Tribal and federal negotiators did not reach consensus on the
following issues, the federal and tribal suggested language for each
area of disagreement are presented below, in order, by subpart and
section, where appropriate. In addition to comments on the proposed
rule, we are also requesting comments on each of the areas of
disagreement.

General Issues

Tribal view: The fundamental disagreement between the federal
representatives and the tribal representatives goes to the heart of the
Tribal Self-Governance Act of 1994

[[Page 7204]]

(Title IV) (Pub. L. 103-413). The tribal representatives emphasized the
importance of the compact as a vehicle for government-to-government
relations and the funding agreements as a vehicle for the transfer of
funds.
The tribal representatives also point to the groundwork that has
been established under Title I of Pub. L. 93-638 and the regulations
published pursuant thereto. Self-Governance is the next logical
sequence in the era of self-determination policy. Hence, only steps
forward, only progressive policies, only those regulations which went
beyond Title I and advanced tribal empowerment over federal dominance
were advocated by the tribal representatives. It is thus the tribal
view that pursuant to these fundamental tenets and principles,
notwithstanding any language to the contrary in the proposed
regulations, a tribe assuming responsibility for any program
contractible under title I is entitled to all the rights that attach to
a program of the Bureau of Indian Affairs (BIA) under these
regulations.
The tribal representatives viewed the inclusion of many of the non-
BIA programs as mandatory and sought to negotiate the parameters of the
mandate. The Act provides the tribes with flexibility; the empowerment
to redesign programs and prioritize spending themselves; the
opportunity to get out from under the dominance of federal agencies;
and transferring the funds that support excessive federal oversight,
reporting and decision-making to the local tribal level.
Federal view: The federal team agrees that government-to-government
compacts and annual funding agreements are important within the context
of the Act. The federal views as to the differences between compacts
and annual funding agreements and the differences between programs
administered by BIA and the other departmental bureaus are set forth in
greater detail elsewhere in this Preamble. As a general matter, where
the program involved entails a tribe administering its own affairs, the
Department has sought to ensure that the tribe does have the control
and authority needed to govern itself and its members. However, where
the program instead involves programs administered for the Nation as a
whole, where it is not a matter of a tribe governing itself and its
members, then different standards apply under the law and in the
regulatory proposals that the federal team has made.
The federal team also agrees that self-governance is ``the next
logical sequence in the era of self-determination policy.'' However,
tribal participation in a non-BIA program which is not administered for
the benefit of Indians does not necessarily raise issues of either
self-determination or self-governance. Such programs instead entail a
cooperative spirit of working together with the local communities in
the administration of programs designed for the benefit of the Nation
as a whole.

BIA/Non-BIA References

Tribal view: A fundamental problem developed throughout the
negotiation process, which culminated in the delineation of Department
of the Interior programs into three distinct categories: (1) Bureau of
Indian Affairs programs; (2) non-Bureau of Indian Affairs programs
available under Title I of Pub. L. 93-638; and (3) non-Bureau of Indian
of Affairs programs not available under Title I of Pub. L. 93-638. The
statute mandates that all tribal rights acquired under these
regulations with regard to BIA programs are equally applicable to non-
BIA programs when those non-BIA programs could have been contracted
under Title I of Pub. L. 93-638.
Federal view: The Department has treated programs administered by
BIA differently from both non-BIA programs eligible for contracting
under Pub. L. 93-638 and non-BIA programs of a special geographic,
historic or cultural significance to a self-governance tribe because
the law so provides. Unlike for BIA programs under subsection
403(b)(1), (25 U.S.C. 458cc(b)(1)) subsections 403(b)(2) and (3) (25
U.S.C. 458cc(b)(2) and (3)) of the Tribal Self-Governance Act of 1994
authorize the Department to negotiate for terms and conditions for non-
BIA programs eligible for contracting under Pub. L. 93-638, as well as
requiring approval of the Department before their reallocation,
consolidation and redesign. Section 403(c), (25 U.S.C. 458cc(c))
affords the Secretary discretion to include other programs which are of
special historical, cultural or geographic significance to a tribe in
annual funding agreements. The federal team's proposals follow this
statutory framework.

Annual Funding Agreements

Tribal view: Section 1000.83 under Subpart E (Annual Funding
Agreements for BIA Programs) of the proposed regulations states that:

At the option of the tribe/consortium, and subject to the
availability of Congressional appropriations, a tribe/consortium may
negotiate an AFA with a term that exceeds one year in accordance
with section 105(c)(1) of Title I of Pub. L. 93-638. [Emphasis
added.]

The terms ``agreement,'' ``funding agreement,'' and ``annual
funding agreement'' are used interchangeably throughout the Tribal
Self-Governance Act itself. During the Self-Governance rulemaking
negotiations process, the term ``Annual Funding Agreement (AFA)'' was
used in many of the initial draft documents prior to the drafting
Sec. 1000.83. Consistent with Sec. 1000.83, the term ``Funding
Agreement'' should replace ``Annual Funding Agreement'' to reflect the
intent of this Subpart.
As outlined in section 1000.83, funding amounts which may be
included in a Tribe's agreement are clearly subject to annual
appropriation levels. However, the ``funding agreement'' is a
negotiated document which may also include other terms and conditions
relative to the transfer and assumption of BIA programs to a tribe/
consortium. The tribal representatives contend that the proposed
consistent use of this term provides clarification to this definition.
Federal view: The Tribal Self-Governance Act of 1994 is explicit in
requiring the Secretary to ``to negotiate and enter into an annual
written funding agreement,'' (Pub. L. 103-413, 25 U.S.C. 458 cc (a)).
The federal team has used this statutory language throughout the entire
regulation; however, it has made an exception in section 1000.83 which
applies only to BIA. The legislative history supports the federal
position:

The Committee intends for the Secretary of the Interior to enter
into government-to-government negotiations with a participating
tribal government on an annual basis for the purpose of establishing
annual written funding agreements for periods. S. Rpt. No. 205, 103d
Cong., 1st Sess. 6 (1993) at 8.

Moreover, most appropriations for the non-BIA bureaus are annual in
nature and do not permit multi-year terms in advance of future
appropriations. Accordingly, whenever the term ``funding agreement'' is
mentioned in the Tribal Self-Governance Act and also in this
regulation, the term ``annual'' will always be applied.

Central Office Issue

Tribal view: The Tribal Self-Governance Act of 1994 is clear that
``central office'' funds are to be included in funding Agreements in
sections 403 (b)(1), 405 (b)(5) and 405 (d), (25 U.S.C. 458cc(b)(l);
458ee(b)(5) and (d). Congress was especially clear in emphasizing the
importance of the inclusion of Central Office funds:

The bill language makes plain the Committee's intention that all
BIA central office funds are to be negotiable and that tribal shares
should be developed as a

[[Page 7205]]

percentage of the function transferred. If the Department of the
Interior does not take positive action to fully implement this
commitment to Self-Governance Tribes, the Committee will be
compelled to consider mandating specific tribal share negotiation
requirements for BIA central office. While the inflexibility of a
statutory approach may well be less than desirable, the Department
of the Interior's delay on this issue can no longer be ignored. The
Committee strongly urges the Department of the Interior to
immediately implement the commitment it has made to these Tribes and
to the Committee. S. Rpt. No. 205, 103d Cong., 1st Sess. 6 (1993) at
10.
It is the Committee's firm intent that BIA Central Office funds
and resources be included in the tribe-by-tribe negotiations for
tribal shares. The Committee is partially distressed by the
Department of the Interior's recent policy reversal regarding their
intent to engage in serious negotiations on tribal shares of
programs, services, activities, and functions controlled by BIA
Central Office. This decision is in clear violation of the spirit
and intent of Tribal Self-Governance. The committee strongly urges
the Department to reexamine this policy reversal and pursue
negotiations of tribal shares of programs, services, activities, and
functions controlled by BIA Central Office. Should the Department
fail to take action, the Committee will consider a legislative
solution to ensure that tribes in Tribal Self-Governance receive a
fair share of the programs, services, activities, and functions in
the BIA Central Office accounts. H. R. Rep. No. 653, 103d Cong., 2nd
Sess. 7 (1994) at 11.
The Committee also is troubled by the continuing refusal of the
Department of the Interior for the past four years to negotiate, on
a line-by line basis with Indian tribes participating in Tribal
Self-Governance for the tribal shares of BIA Central office funds
and resources despite clear directives to do so from various
Congressional Committees. This bill language makes clear that all
BIA Central office funds are to be negotiated and that tribal shares
should be developed as a percentage of the function transferred. The
language in the bill ``all funds specifically or functionally
related'' means all funds appropriated or administered * * * The
Committee intends any funds that are specifically or functionally
related to the delivery of services or benefits to the tribe and its
members, regardless of the source of the funds or the location in
the Department, shall be available for self-governance compacting.
H. R. Rep. No. 653, 103d Cong., 2nd Sess. 7 (1994) at 12.

Hence, the authorizing Committees intended that the permanent
policy of the United States Department of the Interior should be to
include central office shares in tribal funding agreements. While
appropriation committees may set policies on an annual basis, they are
generally limited to directives for the fiscal year only. The clear
intent of Congress was to include central office shares on a permanent
basis and the regulations must follow the statute and the Congressional
intent.
Federal view: The sections of these proposed regulations that deal
with central office tribal shares are 1000.88 and 1000.94 and are
adopted by the Rulemaking Committee prior to enactment of the FY 1997
Department of the Interior and Related Agencies Appropriations Act
(Pub. L. 104-20) which prohibited the inclusion of central office
tribal shares in annual funding agreements. In light of this
prohibition, the Department specifically requests comments on whether
sections 1000.88 and 1000.94 of the proposed regulation should be
amended to explicitly provide that central office funding may not be
available as a result of such appropriations provisions.

Definitions

Inherently Federal Functions
Tribal view: The committee was not able to reach consensus on a
definition for ``inherently federal functions.'' The definition of
inherently federal functions has been an issue of great controversy
during the rulemaking process. It is a critical concept because it
defines a term found in Pub. L. 103-413, sec. 403 (25 U.S.C. 458cc(k))
by identifying those functions and activities of programs that may not
be included in a funding agreement. The Solicitor's Memorandum of May
17, 1996, entitled ``Inherently Federal Functions under the Tribal
Self-Governance Act of 1994'' is one with which the tribal
representatives substantially agrees. The tribal representatives
propose citing the Solicitor's Memorandum as guidance in the
definitions as follows:

Inherently federal functions means those functions that must be
performed by federal officials, and only federal officials, as
defined in accordance with general guidelines of the May 17, 1996
Department of the Interior Solicitor's Memorandum.

As an alternative, the tribal representatives proposed the
following definition, which is consistent with the Solicitor's
Memorandum and substantially similar to the definition developed by the
Tribal Work Group on Tribal Shares formed to review BIA work on
determining tribal shares for all programs, services, functions and
activities of the BIA:

Inherently federal functions means of all functions provided by
a federal agency in carrying out its duties, inherently federal
functions are those which by law (U.S. Constitution, treaties,
federal statutes, and federal court decisions) can only be performed
by federal employees, and which the agency cannot delegate to tribes
or tribal organizations for performance because it is
constitutionally or statutorily barred from doing so.

A well understood definition that narrowly construes this concept
as clearly derived from the Constitution and statutes, while
recognizing that tribes as self-governing entities stand in a different
relationship to the United States than do mere grantees or contractors,
is essential to successful implementation of the Tribal Self Governance
Act of 1994.
Federal view: The federal team agrees that the concept of
inherently federal functions is important. The federal team believes
that ``inherently federal'' is one of several factors that must be
considered during the negotiation of an AFA. Pub. L. 103-413, section
403 (k) (25 U.S.C. Section 458cc(k)) provides that the Tribal Self-
Governance Act of 1994 does not ``* * * authorize the Secretary to
enter into any agreement under Pub. L. 103-413, sections 403(b)(2) and
403(c)(1), (25 U.S.C. sections 458cc(b)(2) and 458ee(c)(1)) with
respect to functions that are inherently federal or where the statute
establishing the existing program does not authorize the type of
participation sought by the tribe. * * *'' Thus, the type of
participation sought by the tribe is equally a factor that must be
considered in negotiations.
The federal team further believes that the concept of ``inherently
federal'' will not apply to entire programs which may be eligible for
negotiation, but instead to functions or activities within those
programs required under federal law to be carried out by federal
officials.
As recognized in the above mentioned opinion of the Solicitor and
because the scope of programs available for inclusion in an AFA is
dependent upon the underlying programmatic statutes and annual
appropriations, such decisions are best made on a case-by-case basis
during the government-to-government negotiation process. In this
manner, all relevant factors can be considered by the parties.

Subpart E--Annual Funding Agreements for Bureau of Indian Affairs
Programs

Suspension, Withhold or Delay Payment Under Annual Funding Agreements
Tribal view: Under Title I of Pub. L. 93-638 as amended, the
Secretary is specifically given authority to withhold, suspend or delay
payments (25 U.S.C. section 450j-1(l)). Such authority implies
evaluations and oversight of tribal actions. However, a close review of
Title IV the Tribal Self-Governance Act of 1994 (Pub. L. 103-413)
reveals that Title IV provides no authority for the Secretary with the
authority to suspend, withhold or delay payment

[[Page 7206]]

under an AFA. Congress determined that the funds would be better spent
for services, rather than funding an additional federal compliance
bureaucracy. The tribes recognize that some funds are appropriated by
Congress with explicit statutory limitations regarding their
expenditure and that tribes are required to meet these explicit
limitations.
The tribal representatives propose this question and answer:

Does the Secretary or a designated representative have authority to
suspend, withhold, or delay payment under an AFA?

No, unless the funds subject to suspension, withholding or delay
are subject to a statutory limitation on their expenditure and the
tribe/consortium has agreed to the terms under which such an action
may be imposed. The Secretary must notify the affected tribe/
consortium of the determination so that the tribe/consortium may
appeal the determination. The Secretary's determination will be
stayed pending the appeal.

Federal view: The federal team believes that there should be
guidance regarding the conditions under which the federal government
may enforce compliance with annual funding agreements by withholding,
suspending or delaying payments. Pub. L. 93-638 statutory and
regulatory language has a similar provision in 25 U.S.C. section 450j-
1(l) and 25 CFR 900, as proposed below in the federal question and
answer. Proposed section 1000.79 provides that AFAs ``are legally
binding and mutually enforceable written agreements. * * *'' The
federal team believes that in order for agreements to be binding and
enforceable, the federal government needs some enforcement mechanism to
suspend, withhold or delay payments when there is a determination that
the tribe has not complied with the AFA. The federal team believes that
this will have no serious effect on tribes because tribes would have an
automatic emergency appeal of this governmental action. This
enforcement mechanism will not require any additional federal
bureaucracy. It is not anticipated that BIA will have staff for or
evaluations for oversight and compliance purposes. This proposal
addresses those times when a tribe has substantially failed to carry
out the AFA without good cause. The federal proposal is as follows:

Does the Secretary or a designated representative have authority to
suspend, withhold, or delay payment under an AFA?

No, unless otherwise provided in this part or when the Secretary
makes a determination that the tribe/consortium has failed to
substantially carry out the AFA without good cause. The Secretary
must notify the affected tribe/consortium of the determination so
that the tribe/consortium may appeal the determination. The
Secretary's determination will be stayed pending the appeal.

Subpart F--Non-BIA Annual Funding Agreement

Tribal view: The tribal representatives disagree with the federal
view of Pub. L. 103-413 section 403(b)(2), (25 U.S.C. 458cc(b)(2))
which is set forth below:

(b) Contents--Each funding agreement shall--* * *
(2) subject to such terms as may be negotiated, authorize the
tribe to plan, conduct, consolidate, and administer programs,
services, functions, and activities, or portions thereof,
administered by the Department of the Interior, other than through
the Bureau of Indian Affairs, that are otherwise available to Indian
tribes or Indians, as identified in section 405(c) [25 U.S.C.
458ee(c)] of this title, except that nothing in this subsection may
be construed to provide any tribe with a preference with respect to
the opportunity of the tribe to administer programs, services,
functions, and activities, or portions thereof, unless such
preference is otherwise provided for by law; [Emphasis added.]

This provision mandates that certain non-BIA programs must be
included in tribal Self-Governance compacts and funding agreements upon
the request of a tribe. The word ``shall,'' which appears at the
beginning of this section, is an express, clear and specific statement
by the Congress that there are some non-BIA programs in the Interior
Department which are mandatorily compactable under the Tribal Self-
Governance Act of 1994; specifically, those programs which are deemed
to be ``otherwise available'' to tribes. The tribal representatives
acknowledge that the section limits these matters to terms which are
subject to negotiation--in contrast, the federal representatives viewed
all non-BIA Interior programs, not eligible for contracting under Pub.
L. 93-638, and can only be included in the Self-Governance program upon
the approval of the Department.
The tribal representatives noted that Pub. L. 103-413 section
403(c), (25 U.S.C. 458cc(c)) includes the discretionary programs for
non-BIA agencies, whereas Pub. L. 103-413 section 403(b)(2), (25 U.S.C.
458cc(b)(2)) clearly is meant to provide for the mandatory non-BIA
programs. Congress provided two separate sections of the Tribal Self-
Governance Act of 1994 for a reason and the mandatory versus
discretionary dichotomy is both logical and consistent with the plain
language of that Act. Congress clearly intended that the Department err
on the side of including Interior Department programs in tribal Self-
Governance agreements. Congress created a presumption in favor of
inclusion under the ``facilitation clause'' of Pub. L. 103-413 section
403(i), (25 U.S.C. 458cc(i)) which requires the Secretary to interpret
laws and regulations in a manner that will facilitate the inclusion of
programs and the implementation of agreements, but the Congress left it
to the Self-Governance Negotiated Rulemaking Committee to determine
which types of programs would be mandatory and which would be
discretionary with the understanding that both were presumptively
inclusive. Indeed, in discussing these non-BIA provisions, the House
Report states:

The Committee intends this provision in conjunction with the
rest of the Act, to ensure that any federal activity carried out by
the Secretary within the exterior boundaries of the reservation
shall be presumptively eligible for inclusion in the Self-Governance
funding agreement. H. Rpt. No. 653, 103d Cong., 2nd Sess. 7 (1994)
at 10.

The tribal representatives propose the following:

Are there non-BIA programs for which the Secretary must negotiate
for inclusion in an Annual Funding Agreement subject to such terms
as the parties may negotiate?

Subject to such terms as may be negotiated, the Secretary shall
negotiate and enter into an Annual Funding Agreement authorizing the
tribe to plan, conduct, consolidate, and administer programs,
services, functions, and activities, or portions thereof,
administered by the Department of the Interior, that are otherwise
available to Indian tribes or Indians, as identified in section
405(c), to the extent authorized and not otherwise prohibited by
law.

What programs are included under section 403(b)(2) of the Act?

(a) Those programs, or portions thereof, eligible for
contracting under Pub. L. 93-638; and
(b) Other programs in a non-BIA bureau of the Department that
are ``otherwise available to Indian tribes and Indians'' to the
extent authorized by this section of the Act, including other
programs that the Secretary is not prohibited by law from awarding
by contract, grant or cooperative agreement, and for competitive
programs for which the tribe has received the award.

There is a clear difference between the types of programs
contemplated in Pub. L. 93-638 [Title I] and those contemplated in 103-
413 [Title IV]. Pub. L. 93-638 only encompasses programs for the
``benefit of Indians because of their status as Indians'' whereas Pub.
L. 100-472 and Pub. L. 103-413 encompass all programs ``otherwise
available to Indian tribes or Indians''. This standard was created in
Pub. L. 100-472 in 1988 and its meaning for Pub. L. 103-413 is
delineated in report language:

[[Page 7207]]

The Committee wishes to make clear to the Department of the
Interior, the Committee's intention with regard to what funds are to
be negotiable. At a minimum, the Secretary must provide the money
that a Tribe would have been eligible to receive under Self-
Determination Act contracts and grants. In addition to this, the
Secretary must provide all funds specifically or functionally
related to the Department of the Interior's provision of services
and benefits to the Tribe and its members. This means the Department
of the Interior must include in a Tribe's Self-Governance Funding
Agreement all those funds and resources sought by the Tribe which
the Federal government would have used in any way to carry out its
programs and operations if it had provided services and benefits,
either directly or through contracts, grants or other agreements, to
the Tribe or its members in lieu of a Self-Governance agreement.
This would include all funds and resources regardless of the
geographic location or administrative level at which the Department
of the Interior would have expended funds in lieu of a Self-
Governance agreement. The only funds the Department is legally
permitted to hold back from negotiation are those which are
expressly excluded by statute or those funds necessary to carry out
certain limited functions which by statute may be performed only by
a Federal official. S. Rpt. No. 205, 103rd Cong., 1st Sess. 6 1996
at 9. [Emphasis added.]

Hence, the Congress meant Title IV Pub. L. 103-413 self-governance
agreements to include Title I Pub. L. 93-638 programs in addition to
other funds. The best support for this position is provided in the
Tribal Self Governance Act of 1994 itself under section 403(g)(3), (25
U.S.C. 458cc(g)(3)), which applies to both BIA and non-BIA agreements:

(3) Subject to paragraph (4) of this subsection and paragraphs
(1) through (3) of subsection (b), the Secretary shall provide funds
to the tribe under an agreement under this title for programs,
services, functions, and activities, or portions thereof, in an
amount equal to the amount that the tribe would have been eligible
to receive under contracts and grants under this Act, including
amounts for direct program and contract support costs and, in
addition, any funds that are specifically or functionally related to
the provision by the Secretary of services and benefits to the tribe
or its members, without regard to the organization level within the
Department where such functions are carried out. [Emphasis added.]

The tribal representatives propose the following:

Under Pub. L. 103-413 section 403(b)(2), (25 U.S.C. 458cc(b)(2))
when must programs be awarded non-competitively?

(a) Pub. L. 93-638 Programs.
Programs eligible for contracting under Title I of Pub. L. 93-
638 must be awarded non-competitively.
(b) Non-Pub. L. 93-638 Programs.
Other programs otherwise available to Indian tribes or Indians
must be awarded non-competitively, except when a statute requires a
competitive process.

The tribal representatives are seeking in this regulation to
require the Department to treat Pub. L. 93-638 programs and non-Pub. L.
93-638 programs similarly. Without this regulation, the Department
would be allowed to remove certain programs from eligibility for all
tribes and arbitrarily establish its own competitive process.
Under Pub. L. 103-413 section 403(b), (2), (25 U.S.C. 458cc(b)(2)),
the non-BIA bureaus have little discretion as to what funds get
included in agreements, and no discretion as far as establishing
competitive processes, unless allowed to do so by the Congress. The
House Report states:

The language in the bill ``all funds specifically or
functionally related'' means all funds appropriated or administered,
not just by BIA, but also every office or agency or bureau with the
Department of the Interior, including, but not limited to, the
Bureau of Reclamation, the U.S. Fish and Wildlife Service, the
Office of Policy Management and Budget, the National Park Service,
the Bureau of Land Management, the Minerals Managements Service, the
U.S. Geological Survey, the Office of Surface Mining and
Enforcement, and the Bureau of Mines. The Committee intends any
funds that are specifically or functionally related to the delivery
of services or benefits to the tribe and its members, regardless of
the source of the funds or the location in the Department, shall be
available for self-governance compacting. H.R. Rep. No. 653, 103d.
Cong., 2nd Sess 7 (1994) at 12.

The Senate Report, using similar language to that reprinted above,
added:

Neither the source of the appropriated funds, nor the location
in which it would have been otherwise spent, may limit the
negotiability of these funds. S. Rep. No. 205, 103d Cong., 1st Sess
6 (1993) at 10-11.

Hence, the negotiability of funds from all divisions, bureaus and
offices within the Interior Department was clearly intended by the
Congress. Nowhere in the Act or in the legislative history did the
Congress indicate that the Department would be allowed to make funds
competitive on its own or arbitrarily take funds off the negotiating
table. Each division of the Interior Department is required to make a
determination, through negotiations, of the appropriate allocation of
funds to a particular tribe, and once that allocation is determined,
the Department is to provide that funding in a Self-Governance
agreement.
The funds to be provided for non-BIA programs should not be
constricted by the programmatic requirements of the non-BIA bureaus.
Thus the tribal representatives propose the following:

How is funding for non-BIA programs determined?

The amount of funding is determined pursuant to section 403(g),
(25 U.S.C. 458cc(g)) and applicable provisions of law, regulation,
or Office of Management and Budget (OMB) Circulars.

The Tribal Self-Governance Act of 1994 makes no distinction between
the method of determining funding for BIA and non-BIA programs. Section
403(g), (25 U.S.C. 458cc(g)) provides that tribes are to receive an
amount equal to the amount the tribe would have received under ``Pub.
L. 93-638'' contracts and grants, plus contract support, plus funds
specifically and functionally related to the provision of services by
the Secretary without regard to the level within the Department where
such services are carried out. Section 403(g), (25 U.S.C. 458cc(g))
applies across the board to BIA and non-BIA bureaus. Hence, the tribal
proposed regulation merely requires that the Department follow the law
with regard to making payments to the tribes under the Tribal Self-
Governance Act of 1994.
Federal view: The federal team notes that when Congress established
a permanent Self-Governance program to replace the demonstration phase,
it clearly distinguished between the scope of and treatment for
programs administered by the Bureau of Indian Affairs under Pub. L.
103-413 403(b)(1), (25 U.S.C. 458cc(b)(1)), and programs ``otherwise
available to Indian tribes or Indians'' which are administered by the
other Departmental bureaus. This distinction is consistent with the
objective of the Tribal Self-Governance Act of 1994 for Self-Governance
tribes to have the opportunity to elect how and to what extent, they
intend to administer programs that have been historically run for their
benefit, ``[T]he 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 statutes, and the course of dealings of the United States with
Indian tribes. * * *'' section 202(2) of the Tribal Self-Governance Act
of 1994, (25 U.S.C. 458aa) (emphasis added).
Much of the difficulty in interpreting the law and how it applies
to the non-BIA bureaus is the lack of agreement on the meaning of the
term ``otherwise available to Indian tribes or Indians.''
The legislative history of the Tribal Self-Governance Act of 1994
supports the federal team's view that ``otherwise available to''
programs under section 403(b)(2) is essentially a different way of
describing those programs which are eligible for contracting under Pub.
L.

[[Page 7208]]

93-638. Significantly in this regard, the Tribal Self-Governance Act
continued the scope of programs that were eligible for inclusion in
AFAs under the Self-Governance Demonstration Program which stated,
``shall authorize the tribe to plan, conduct, consolidate, and
administer programs, services and functions of the Department of the
Interior * * * that are otherwise available to Indian tribes or
Indians. * * *'' [Title III of Pub. L. 93-638, as added by Pub. L. 100-
472, Title II, section 209, 25 U.S.C. 450f (note)].
The Congressional Committee reports give no indication that
Congress had expanded the scope of the Program to other than programs
for Indian tribes and individual Indians:

Self-Governance promises an orderly transition from the federal
domination of programs and services benefitting Indian tribes to
tribal authority and control over those programs and services. (H.R.
Report No. 653, 103d Congress, 2nd Session, at 7 (1994)).
Since 1988, Interior has conducted Self-Governance under
demonstration authority. The Self-Governance Demonstration Project
has had measurable success. It has achieved the goals it set out to
achieve--examining the benefits of allowing tribes to assume more
control and responsibility over programs, services, functions and
activities provided to their members previously furnished by the
federal agency administering these programs, services, functions and
activities. (S. Rpt. No. 205 at 5, 103d Cong., 1st Sess. (1993)).
The funds transferred to Self-Governance tribes should include
only those fun[d]s that otherwise would have been spent by the
Department of the Interior, either directly or indirectly for the
benefit of these tribes. Therefore, this bill should have no impact
on federal outlays if it is properly administered in conformity with
the intent of the Congress. (S. Rpt. No. 205 at 14, 103d Cong., 1st
Sess. (1993)).

Thus, the federal team believes that programs which ``benefit''
tribes are those eligible for contracting under Pub. L. 93-638. These
statements of Congressional intent are consistent with both the concept
of tribes choosing how to administer programs previously administered
by the Department for their benefit, and the federal team's
interpretation of programs eligible for contracting under Pub. L. 103-
413 section 403(b)(2), (25 U.S.C. 458cc(b)(2)).
The exception clause of Pub. L. 103-413 (25 U.S.C. 458cc(b)(2))
section 403(b)(2), i.e., ``* * * except that nothing in this subsection
may be construed to provide any tribe with a preference with respect to
the opportunity of the tribe to administer programs, services,
functions, and activities, or portions thereof, unless such preference
is otherwise provided by law * * *,'' also supports this
interpretation. This clause effectively precludes the inclusion of
programs in annual funding agreements for which no exemption from the
competitive contracting rules apply. Programs eligible for Pub. L. 93-
638 contracting are both exempt from competitive contracting and are
the only programs intended specifically for Indian tribes and their
members. Only Pub. L. 93-638 programs involve tribes assuming ``more
control and responsibility over programs'' provided to their members
and previously furnished by one or more of the non-BIA bureaus.
Congress further distinguished between BIA programs and programs
administered by other bureaus in the Department in stipulating that
annual funding agreements negotiated under Pub. L. 93-638 section
403(b)(2), (25 U.S.C. 458cc(b)(2)) are subject to such terms as may be
negotiated. Similarly, under Pub. L. 93-638 section 403(b)(3), (25
U.S.C. 458cc(b)(3)), consolidation and redesign of only non-BIA
programs authorized by section 403(b)(2), (25 U.S.C. 458cc(b)(2)) are
subject to joint agreements between the parties. Congress authorized
annual funding agreements for additional programs of ``special
geographic, historical, or cultural significance'' to a Self-Governance
tribe under Pub. L. 103-413 section 403(c), (25 U.S.C. 458cc(c)) on a
discretionary basis.
The federal representatives agree with the tribal representatives
that the Act was meant, primarily, to provide a means for tribes to
have an opportunity to assume the dominant role in administering
programs established for the benefit of Indians. The House and Senate
reports to which the tribal representatives refer, however, do not
support the view that non-BIA, ``non-Indian'' programs were meant to be
treated the same as either BIA or non-BIA programs eligible under Pub.
L. 93-638. Nor do these reports even suggest that Congress intended
Title III of Pub. L. 100-472 and Title IV of Pub. L. 103-413 programs
``otherwise available'' to Indians to extend to non-BIA, non-Indian
programs. Rather, such funds must be used in accordance with the
specific programmatic and appropriations requirements imposed by
Congress. Consistent with the federal position, Pub. L. 103-413 section
403(b)(3), (25 U.S.C. 458cc(b)(3)) permits the reallocation of funds
for non-BIA programs only in accordance with a joint agreement of the
tribe and the Department in order to ensure that funds are not used for
purposes different from those provided in the relevant appropriations
act.
The federal team also does not agree that non-BIA bureaus have
little discretion as to the funding levels to be included in AFAs for
programs not eligible for contracting under Pub. L. 93-638. Pub. L.
103-413 section 403(g)(3), (25 U.S.C. 458cc(g)(3)) of the Act directs
the Secretary to include funds ``in an amount equal to the amount that
the tribe would have been eligible to receive under contracts and
grants under this Act * * *.'' The reference to the ``Act'' in this
quotation is to Pub. L. 93-638. This provision also supports the
federal view that programs ``otherwise available to Indians'' is simply
another way of describing programs eligible for contracting under Pub.
L. 93-638, i.e., those programs established for the benefit of Indians
because of their status as Indians, since it directs funding only for
such programs. Thus, for non-Public Law 93-638 programs, the self-
governance statute does not direct the inclusion of funds for such
programs. The federal proposals, below, require that funding for such
programs instead be at levels that the relevant bureau would have spent
to administer the program at the level of activity recognized by the
AFA. This balances the needs of the tribe for adequate funds to
administer programs under AFA's, with the requirements of the Secretary
and the bureaus to determine how to allocate their financial resources
for non-Indian programs to address national, regional, and local
priorities.
The federal proposal is the following:

Are there non-BIA programs for which the Secretary must negotiate
for inclusion in an Annual Funding Agreement 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.

What programs are included under Pub. L. 103-413, section 403(b),
(2) (25 U.S.C. 103-413)?

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

Under Pub. L. 103-413, section 403(b), (2), (25 U.S.C. 103-413)
when must programs be awarded non-competitively?

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

The annual listing of programs, functions, and activities or
portions thereof that are eligible for inclusion in AFAs required by
Pub. L. 103-413 section 405(c), (25 U.S.C. 458ee(c)) are of two types.
First are those programs eligible for contracting under Pub. L. 103-
413, section 403(b), (2), (25 U.S.C. 458cc(b)(2)) that are available to
Indians

[[Page 7209]]

or Indian tribes for which there is a contracting preference provided
by law. Second are those programs authorized by 403(c) (25 U.S.C.
458cc(c)) that may be included in AFAs that are of special geographic,
historical, or cultural significance to the Self-Governance tribe,
subject to such terms as may be mutually agreed upon. These programs
are listed as eligible for inclusion in AFAs at the discretion of the
Secretary. The annual listing required by section 405(c) (25 U.S.C.
458ee(c)) provides a framework for discussion with Self-Governance
tribes concerning what programs might be available for inclusion in
AFAs under section 403(b)(2), (25 U.S.C. 458cc(b)(2)), and section
403(c) (25 U.S.C. 458cc(c)).

Subpart G--Negotiation Process for Annual Funding Agreements

Self-Governance Compact
Tribal view: The tribal position is that Compacts are important
vehicles to reflect the government-to-government relationship between
tribes and the United States. This relationship by definition permits
variation among tribes. Additionally, individual tribes may desire to
emphasize specific aspects of the relationship that have particular
importance for such tribes. In interpreting what provisions permissibly
may be part of a Compact, it is important to consider the guiding
principles of Indian law as well as the Secretary's obligations
enunciated in the Tribal Self-Governance Act of 1994 as the basis for
inclusion.
25 U.S.C. section 458cc(I)(1) also provides that the Secretary is
to construe laws and regulations in a manner that favors inclusion of
programs in Self-Governance. In this context, it is not necessary to
find specific statutory authorization to justify adding appropriate
terms and conditions to Compacts. Compacts were created without
statutory authorization by the tribes and the Department in the
exercise of reasonable discretion to further the implementation of
Self-Governance. To the extent that the tribe's desired terms and
conditions for Compacts do not conflict with these regulations, when
promulgated, that same discretion that created Compacts should allow
such terms and conditions.
One area in which there should be no question is the inclusion of
any provision authorized by Pub. L. 104-109 which provides that any and
all provisions of Title I of Pub. L. 93-638 may be included in Self-
Governance agreements. It reads:

At the option of a participating tribe or tribes, any or all
provisions of part A of this subchapter shall be made part of an
agreement entered into under title III of this Act or this part. The
Secretary is obligated to include such provisions at the option of
the participating tribe or tribes. If such provision is incorporated
it shall have the same force and effect as if set out in full in
Title III or this part. Pub. L. 104-109

The term ``agreement'' as used in Title III of Pub. L. 104-109 and
Title IV of Pub. L. 104-413 means both compacts and funding agreements.
Congress was aware that both documents existed and, had it wished to
limit the application to funding agreements or only agreements for BIA
programs, it would have done so. In the same provision, Congress made
clear through the use of the terms ``shall,'' ``obligated,'' and
``option of the participating tribe'' that the Secretary has no
discretion to refuse to incorporate such provisions. Therefore, the
provisions of Title I can be incorporated into a compact applicable to
BIA programs and non-BIA programs.
The tribal proposal is the following:

Can a tribe negotiate other terms and conditions not contained in
the model compact?

Yes. The Secretary and a self-governance tribe/consortium may
negotiate additional terms relating to the government-to-government
relationship between the tribe(s) and the United States. A tribe/
consortium may include any term that may be included in a contract
and funding agreement under Title I in the model compact contained
in appendix A.

Federal view: The federal team acknowledges the significant role
played by the negotiated compacts during the Tribal Demonstration
Program. With no regulations in place, those compacts established the
rules pertaining to the particular BIA programs that were covered in
AFAs. The proposed regulations in subpart G recognize that the role of
compacts for the permanent program is somewhat different. Section
1000.151, for instance, provides that a ``self-governance compact is an
executed document which affirms the government-to-government
relationship between a self-governance tribe and the United States.''
It is important to remember that the Act does not explicitly authorize
or require the Secretary to enter into compacts, nor does it require
that a tribe have a compact in order to participate in the Self-
Governance Program. The Secretary lacks the authority from Congress
under this Act to enter into binding agreements of a perpetual term
applicable to all programs administered by the Department.
The federal team distinguishes between compacts which set forth the
terms of the government-to-government relationship generally and AFAs
which detail the funding, terms and conditions pertaining to the
specific programs established by Congress and which are eligible to be
administered under the Tribal Self-Governance Act of 1994 by a tribe/
consortium. With the promulgation of regulations under the Act, the
federal team views compacts as serving primarily the policy function of
emphasizing the government-to-government relationship between the
United States and tribes. The federal team believes that the reference
in Pub. L. 104-109 to ``agreements'' is intended to refer to annual
funding agreements. The particular programs of the non-BIA bureaus are
performed under a number of different programmatic statutes and
appropriations provisions which vary substantially from the
administration of BIA programs. It is difficult, if not impossible, to
develop and apply rules applicable to all such programs. Rather, the
federal team believes that Congress intended that this is best left to
the individual AFAs. At the same time, by explicitly recognizing the
discretion of the Secretary in proposed section 1000.153 to include
additional terms in compacts not included in the Model Compact, the
regulations provide the Secretary with the flexibility to include
particular terms that address specific situations that may arise in the
future. Because of this the federal team does not believe any
additional language is required in proposed section 1000.153
The federal position is reflected in the proposed regulation at
section 1000.153.

Successor Annual Funding Agreements

Tribal view: Successor funding agreements are important to protect
against gaps in funding and to provide legal protections that may occur
from unintended breaks between agreements. For example, if the
Department and the tribe/consortium reach a point where a gap occurs
and no agreement is in place, the Federal Tort Claims Act may not
protect the tribe. Such gaps, whether caused by the inability to
negotiate new terms or a delay in processing funding agreements, are
also dangerous in numerous other areas ranging from the protection of
trust assets to law enforcement.
The Secretary has ample discretion, as demonstrated throughout
these regulations, to adopt successor funding agreements. There is
nothing in Title IV, Tribal Self-Governance Act of 1994, that would
prohibit the Secretary from utilizing successor funding agreements.
These agreements are, of course, subject

[[Page 7210]]

to appropriations and would not create any new funding obligations for
the Department. Successor agreements, which are equally applicable to
BIA and non-BIA programs, are clearly within the discretion of the
Secretary and serve important governmental purposes. As noted in
previous sections, the Secretary has an obligation to utilize
discretion to make Self-Governance effective and inclusive.
The tribal proposal is the following:

How are successor annual funding agreements completed?

At the conclusion of the negotiations of the successor AFA, the
tribe/consortium is responsible for submission of the proposed AFA
to the Secretary. If the successor AFA is submitted to the Secretary
no less than 105 days prior to its effective date, prior to 90 days
before the effective date of the AFA,
(a) the Annual Funding Agreement shall be executed by the
Secretary or proposed amendments delivered in writing to the tribe/
consortium; or
(b) the previous year's AFA shall, subject to appropriations, be
deemed to have been extended until a successor AFA is acted upon and
becomes effective when executed by the Secretary on the 90th day
prior to the proposed effective date.

Federal view: The federal team believes the following: (1) There is
no authorization in the Tribal Self-Governance Act of 1994 for an AFA
to be automatically extended; (2) the Department lacks the legal
authority to ``deem'' agreements to be extended; (3) such action in
advance of an appropriation would be considered a violation of the
Anti-Deficiency Act, 31 U.S.C. 1341; and (4) there is no legally
permissible means of dealing with the problem of the potential gap
caused by the 90 day Congressional review period. Accordingly, the
federal team has not proposed a question and answer for this issue.

Subpart H--Limitation and/or Reduction of Services, Contracts, and
Funds

Tribal view: Proposed regulations 1000.81 through 1000.88 implement
section 406(a) of the Tribal Self-Governance Act of 1994 (25 U.S.C.
458ff(a)), which provides:

Nothing in this title shall be construed to limit or reduce in
any way the services, contracts, or funds that any other Indian
tribe or tribal organization is eligible to receive under section
102 or any other applicable Federal law.

These provisions were designed to assure that funds transferred to
Self-Governance tribes/consortia do not have negative consequences for
non-self-governance tribes/consortia with respect to programs which
they were entitled to receive. The concept that another party may be
injured requires an examination of which programs tribes have a right
to expect under existing law. The proposed regulations as drafted apply
only to BIA programs and not to non-BIA programs. The regulations
should apply to non-BIA programs as well.
The crux of the issue, as reflected in a number of disputed
regulations, is whether any non-BIA programs are mandatory--programs
for which tribes/consortia have a right to the program in a funding
agreement. At least some non-BIA programs are ``mandatory'' programs,
through pre-existing language that predicates the Secretary's
requirement to include programs of special significance to Indians in
Self-Governance. The discretionary authority provided to the Secretary
to negotiate special terms and conditions in agreements for such
programs does not in the tribal view remove the ``mandatory'' inclusion
requirement as reflected by the Congressional use of the term ``shall''
rather than the term ``may.'' Pub. L. 103-413, section 403(b), 25
U.S.C. section 458cc(b).
The tribal representatives find the federal argument in this
subpart inconsistent with the federal position in subpart F for non-BIA
programs. The Federal team, without ever conceding in these regulations
that any of these programs may be available as a matter of right, view
that the individuals and tribes might suffer unfairly from the limits
on remedies under the provisions applicable to the BIA. The tribal
representatives believe that the federal argument is for rejecting
application of plain language of the statute to their programs.
Regardless of the bureau responsible for a program, an individual or
tribe with concerns that arise under this subpart should have the
opportunity to formally raise them and have them considered.
Federal view: The federal team acknowledges that the proposed
regulations concerning limitation and/or reduction of services,
contracts and awards apply only to agreements covering programs
administered by BIA. The proposed regulations implement section 406(a)
of Pub. L. 104-413 (25 U.S.C. 458ff(a)) which provides:

This provision applies on its face whenever another tribe or tribal
organization is ``eligible'' to receive funding, and not only when such
funding is mandatory.
The Department disagrees with the tribal proposal for several
reasons. First, it is not clear to what extent this provision will
impact programs of the non-BIA bureaus and the Department is uncertain
in what situations or how this issue is likely to arise. Until some
experience in this regard is gained, and because the non-BIA bureaus
will handle such issues on a case-by-case basis in the absence of
regulations, the Department has not supported issuing regulations which
are applicable to the non-BIA bureaus. The Department encourages
comments to be submitted on how this provision should be viewed in
relation to non-BIA programs which in many cases are funded quite
differently from those of BIA. In particular, can or should this
provision be construed to apply only to programs eligible for
contracting under Pub. L. 93-638? In some cases, multiple tribes or
tribal organizations could be eligible to carry out a ``nexus'' program
administered by a non-BIA bureau. In such cases, a literal reading of
section 406(a), (25 U.S.C. 458ff(a)) would imply that no AFA could be
entered for such programs since it reduces the amount of funding that
the other eligible tribes or tribal organizations could receive. Could
or should the other eligible tribes be able to ``waive'' any rights
they might have under this statutory provision?
Second, the federal team has concerns about whether the provisions
proposed for BIA programs are appropriate for the non-BIA bureaus.
Proposed regulation 1000.183 does not allow this issue to be raised
administratively by individual Indians who might be affected or
aggrieved by an AFA within the context of section 406(a) of Pub. L.
104-413 (25 U.S.C. 458ff(a)). Proposed regulation 1000.185 only permits
the issue to be raised at certain times, although an affected tribe or
tribal organization may not have actual knowledge that it has been
impacted by that AFA, or the limitation does not actually affect that
other tribe or organization until some later year. While the proposed
regulations would deny administrative appeals, it would appear that
aggrieved parties could still seek judicial review under section 110 of
Pub. L. 93-638 (25 U.S.C. 450m-1). In such cases, there would not be an
administrative record for review by the court. The federal team does
not support limiting the rights of aggrieved parties at the
administrative level for the programs that they administer. Moreover,
proposed regulation 1000.188 provides that ``shortfall funding,
supplemental funding, or other available'' resources would be used to
remedy these

[[Page 7211]]

situations in the current fiscal year. The non-BIA bureaus do not have
``shortfall'' funding; it is quite possible that they will lack the
resources to commit additional resources to such programs as this
provision proposes, and they cannot support a regulatory provision with
which they could be unable to comply.

Subpart K--Construction

Tribal view: Tribal representatives have proposed a regulation
which explains that all provisions of the regulations apply to funding
agreements that include construction projects to the extent that they
are not inconsistent with provisions in the regulations that are
specific to construction activities. The tribal proposal is as follows:

Do all provisions or other subparts apply to construction portions
of AFAs?

Yes, unless they are inconsistent with this subpart.

Federal representatives argue that this provision should
specifically identify provisions in the regulations which under no
circumstances apply to construction funding agreements. Tribal
representatives reject the federal proposal because it is overbroad--it
requires that specific regulations not apply to construction funding
agreements, when in fact they may apply to such agreements in certain
circumstances.
For example, federal representatives assert that sections 1000.32,
1000.33 and 1000.34 cannot apply to construction funding agreements
because they allow tribes to withdraw from a tribal organization's
funding agreement a portion of funds which is attributable to that
tribe. Under the federal proposal, these provisions cannot apply to
construction funding agreements because there are no circumstances
under which a tribe can withdraw from a tribal organization and take
out its share of the funds. While this may be correct for construction
projects that are funded on a lump sum, project specific basis (i.e.
building a dam that affects a number of tribes), this is not true if
the construction project is funded through an accumulation of tribal
shares from tribes that make up the tribal organization that is
responsible for the construction activities (i.e. constructing roads
for a number of tribes). In the latter scenario there is no reason why
a withdrawing tribe would not have a right to its tribal share if it
wishes to do the construction itself. The tribal proposal makes it
clear that a withdrawing tribe is only entitled to a portion of the
funds that were included in the funding agreement on the same basis or
methodology upon which the funds were included in the consortium's
funding agreement.
Another example is the applicability of Sec. 1000.82 of these
regulations to construction funding agreements. Federal representatives
argue that a tribe may not select any provision of Title I (Pub. L. 93-
638) for inclusion in a construction funding agreement because doing so
would be inconsistent with all of the construction regulations. This
argument completely ignores that there are provisions in Title I (Pub.
L. 93-638) which a tribe may choose to include in its construction
funding agreement that are not inconsistent with the construction
regulations. For example, Pub. L. 93-638, section 106 (25 U.S.C. 450j-
1(h)) explains how indirect costs for construction programs are to be
calculated. This provision is not inconsistent with the subpart in
these regulations that address construction issues, and therefore there
is no reason why a tribe would not have the right as provided for in
section 1000.82 to incorporate it in a construction funding agreement.
These examples illustrate how the federal proposal is overbroad
because it would not make applicable to construction funding agreements
a number of provisions in the regulations which may apply in specific
circumstances. The tribal proposal addresses the federal concern by
making clear that no regulations apply to construction funding
agreements if they are inconsistent with the construction-specific
regulations.
Federal view: The federal and tribal representatives agree that
where other provisions of these regulations are inconsistent with the
construction subpart, the construction subpart shall govern. It is the
Federal team's view, however, that in addition to this general
exception, specific sections are inconsistent and that these sections
should be specifically identified. The federal team proposes the
following question and answer:

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

Yes, except for sections 1000.32, 1000.33, 1000.34, 1000.82,
1000.83, 1000.88, 1000.92, 1000.94, 1000.95, 1000.96, 1000.97,
1000.98, and 1000.100 or unless they are inconsistent with this
subpart.

The justification for excluding these sections of the proposed
regulations from the construction subpart follows:
Sections 1000.32, 1000.33, and 1000.34. These sections allow
tribes(s) in a consortium to withdraw from the consortium's AFA and
take out the portion of funds attributable to the withdrawing tribe.
Whether the construction project was in the design or construction
phase, the project would immediately become underfunded without any
basis to resolve the shortfall of funds. Unlike most other programs,
construction is a nonrecurring service; any suspension or delay in
construction automatically results in an increase in costs and a delay
in the delivery date agreed to in the AFA. For example, any delays in a
segment of a critical path project, such as an aqueduct, delays the
entire construction project. This conflicts with the construction
subpart, particularly sections 1000.227 and 1000.228(d), which requires
performance in accordance with the AFA delivery schedule and only
allows changes in the work which increase the negotiated funding
amount, the performance period or the scope or objective of the
project, with prior Secretarial approval.
Section 1000.82. This section is inconsistent with the entire
construction subpart, since a tribe could select ``any'' provision of
Title I of Pub. L. 93-638 in an AFA. Section 403(e)(1), (25 U.S.C.
458cc(e)(1)) allows the negotiation of Federal Acquisition Regulations
provisions and 403(e)(2) of Pub. L. 103-413, (25 U.S.C. 458cc(e)(2))
requires the Secretary to ensure health and safety for construction.
The basic premise of many exceptions for construction in Pub. L. 93-
638(25 U.S.C. 450j) was to enable the Secretary to ensure health and
safety. For example, the model contract in section 108 of Pub. L. 93-
638 (25 U.S.C. 450l) was expressly excluded from construction by
section 105(m) of Pub. L. 93-638 (25 U.S.C. 450j(m)). The model
contract permits only one performance monitoring visit by the Secretary
for the contract. The engineering staffs of the Department of Health
and Human Services and the Department of the Interior concluded that
the Secretary could not ensure health and safety with the right to
conduct only one performance inspection during the contract. Also, the
model contract allows design changes during performance without
Secretarial approval and does not allow termination of a construction
contract by the Secretary for substantial failures of performance.
Further, the model contract excludes federal program guidelines,
manuals or policy directives, which is inconsistent with the
construction subpart. These are only a couple of Pub. L. 93-638
provisions that are inconsistent with the construction subpart.
Section 1000.83. This provision would extend the term of a
construction

[[Page 7212]]

contract at the option of a tribe, which would generally increase the
cost of the project.
Sections 1000.88 and 1000.92. These sections will eliminate a pro
rata portion of Facilities Management Construction Center and the BIA
Road Construction Division for the central office, area offices, and
field offices for these functions for the portion of the appropriation
allocable to Self-Governance AFAs. However, the BIA is still
responsible under agreement with the Department of Transportation and
under Pub. L. 103-413 section 403(e)(2), (25 U.S.C. 458cc(e)(2) to
ensure safe construction.
Sections 1000.94 through 1000.98. These sections raise the same
issues discussed for sections 1000.88 and 1000.92 above.
Section 1000.100. This section allows the tribe to reallocate funds
at its option in BIA AFAs, unless otherwise required by law. Many
construction projects are decided on a priority basis out of many needy
projects. Others are simply listed in the relevant bureau's budget.
However, these projects are not ``required'' by law, since they are not
usually earmarked in writing in the Appropriation Act. It is clear,
however, that the bureau is ``required'' by the appropriate
Congressional committee to obligate and expend the funds as approved in
the budget submitted to Congress. Accordingly, the answer to this
question should at a minimum state: ``Unless otherwise required by
budget submitted to Congress or law, and except for construction
projects, the Secretary does not have to approve the reallocation of
funds between programs.''

Subpart Q--Miscellaneous Provisions Cash Management

Tribal view: Federal representatives propose below regulations that
restrict the manner in which tribes or tribal organizations can invest
funds that are received through Self-Governance agreements. There is no
statutory authority for such regulations in Pub. L. 103-413; Pub. L.
93-638 similarly contains no such statutory authority and,
appropriately, no regulations under Title I impose such limitations on
the ability of tribes to invest funds. The federal proposal undermines
the Tribal Self-Governance Act of 1994 by precluding tribes from
managing and investing funds as responsible stewards in a manner which
allows maximum return on their investments while insuring the integrity
of the funds.
Recognizing that the federal representatives expressed an interest
shared by tribes which is to insure that funds are held in a manner
that insures financial integrity tribal representatives propose
language on investments which imposes the same financial management
standards that the special trustee has proposed for managing Indian
monies entrusted in the care of the federal government, the ``prudent
investor'' standard. The tribal proposal is:

1. Are there any restrictions on how funds transferred to a tribe/
consortium under a funding agreement may be spent?

Yes, funds may be spent only for costs associated with purposes
authorized under the funding agreement.

2. May a tribe/consortium invest funds received under self-
governance agreements?

Yes. Any such funds must be invested in accordance with the
``prudent investor standard,'' and must be managed with care and
prudence in a manner which would ensure against any significant loss
of principal.

3. Are there restrictions on how interest or investment income
which accrues on funds provided under self-governance agreements
may be used?

Unless restricted by the annual funding agreement, interest or
income earned on investments or deposits of self-governance awards
may be placed in the tribe's general fund and used for any
governmental purpose approved by the tribe. The tribe may also use
the interest earned to provide expanded services under the self-
governance funding agreement and to support some or all of the costs
of investment services.

Federal view: It is the concern of federal team that federal funds
be safeguarded pending expenditure for purposes approved under an AFA.
The federal representatives assert that placing federal cash in non-
secured investments poses a significant risk of loss of federal funds.
Where the Congress by statute has allowed other Indian grantees to
invest federal funds (e.g. the Tribally Controlled Community College
Assistance Amendments of 1986 and the Tribally Controlled Community
Schools Act of 1988) such investments have been limited to obligations
of the United States or in obligations that are fully insured by the
United States. The same limitations on investments are proposed for
federal funds advanced to Indian tribes under self-governance AFAs.
The federal team believes that the following proposals impose
minimal requirements on Self-Governance tribes/consortia, yet are
critical to the maintenance of federal financial integrity. As such,
these proposals are authorized as part of maintaining the federal trust
responsibility under section 406(b) of the Public Law 103-413 (25
U.S.C. 458ff(b)).

1. Are there any restrictions on how funds transferred to a tribe/
consortium under an AFA may be spent?

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

2. May a tribe/consortium invest funds received under self-
governance agreements?

Yes, self-governance funds may be invested if such investment is
in (1) obligations of the United States; (2) obligations or
securities that are within the limits guaranteed or insured by the
United States, or; (3) deposits insured by an agency or
instrumentality of the United States.

3. Are there restrictions on how interest or investment income
which accrues on any funds provided under self-governance AFAs may
be used?

Unless restricted by the AFA, interest or income earned on
investments or deposits of self-governance awards may be placed in
the tribe's general fund and used for any purpose approved by the
tribe. The tribe may also use the interest earned to provide
expanded services under the self-governance AFA and to support some
or all of the costs of investment services.

Waiver Request

Tribal view: The tribal representatives note that Pub. L. 103-413,
sec. 403 (I)(2) (25 U.S.C. section 458cc(I)(2)) authorizes the
Secretary, upon request of a tribe/consortium, to waive the application
of a federal regulation included in a self-governance funding
agreement. The provision provides as follows:

Not later than 60 days after receipt by the Secretary of a
written request by a tribe to waive application of a Federal
regulation for an agreement entered into under this section, the
Secretary shall either approve or deny the waiver in writing to the
tribe. A denial may be made only upon a specific finding by the
Secretary that identified language in the regulation may not be
waived because such waiver is prohibited by Federal law. The
Secretary's decision shall be final for the Department.

This language authorizes waiver of all federal regulations that may
apply to funding agreements and the provision includes a strong
presumption in favor of waiving regulations. Further, tribal
representatives note that section 107(e) of Title I (25 U.S.C. 450k(e))
has been interpreted by the Department of the Interior to permit a
waiver to be automatically granted in the event the Department does not
provide a response to the request within a certain time-frame.
Regulations implementing these provisions provide for the automatic
granting of a waiver if the Department fails to act within a period of
90 days. See 25 CFR 900.144. There is no reason why this right should
not be extended

[[Page 7213]]

to tribes under Title IV, the Tribal Self-Governance Act of 1994.
Accordingly, tribal representatives proposed a waiver regulation, set
forth below, which is consistent with the waiver of regulations adopted
under Pub. L. 93-638, Title I:

How much time does the Secretary have to process a waiver request?

The Secretary must approve or deny a waiver request within 60
days of receipt of the request. The decision must be in writing.
Unless a waiver request is denied within sixty (60) days after the
date it was received it shall be deemed approved.

Federal view: The federal team acknowledges that the Tribal Self-
Governance Act of 1994 (Pub. L. 103-413; Title IV requires a written
decision be made within a 60-day period. Consistent with that Act, the
regulations also should state this point. Unlike under Pub. L. 93-638
(25 U.S.C. 450), there is no authorization in Tribal Self-Governance
Act of 1994 for automatic approval of waiver requests when a deadline
is missed. Furthermore, the nature and scope of the Pub. L. 93-638
waiver provision is substantially different from that of the self-
governance waiver provision. The Pub. L. 93-638 regulations at 25 CFR
900.144 authorize waiver of only the Self-Determination regulations
which are procedural regulations. The waiver provision of Title IV of
Pub. L. 103-413 addresses the waiver of substantive Department-wide
regulations. Because this waiver provision is broader in scope, and
because the Department lacks statutory authority to deem approval, the
federal team wants to ensure that when a waiver is granted, there has
been active federal participation in the approval process.

How much time does the Secretary have to process a waiver request?

The Secretary must approve or deny a waiver request for an
existing AFA within 60 days of receipt of the request. The decision
must be in writing.

Conflicts of Interest

Tribal view: The tribal representatives object to the federal
proposal on conflicts of interest for a number of fundamental reasons.
First, there is no statutory basis in Title IV (Pub. L. 103-413) for
requiring such rules for tribes. Indeed, the point of this Act is to
allow tribes greater autonomy to run their internal affairs in their
own way. Second, at the heart of the Act is the compact and the AFAs
which are to reflect the government-to-government relations between the
tribe and the United States. Any specific requirements for matters such
as conflict of interest should be the subject of the specific
agreements entered into by individual tribes. Third, establishing a
single set of rules fails to take into account the diversity of tribes
and tribal situations. Providing flexibility, as the tribal
representatives believe their proposed language does, does not diminish
the likelihood of adequate safeguards; it improves the likelihood by
allowing tribes to set standards consistent with the tribe's size,
history, culture, and tradition.
The tribal representatives propose language limiting the
application of the regulations to situations where in the financial
interests of tribes and beneficial owners conflict and are significant
enough to impair a tribe's objectivity.

Organizational Conflicts

What is an organizational conflict of interest?

An organization conflict of interest arises when there is a
direct conflict between the financial interests of the Indian tribe/
consortium and the financial interests of the beneficial owners
relating to Indian trust resources. This section only applies where
the financial interests of the Indian tribe/consortium are
significant enough to impair the Indian tribe/consortium's
objectivity in carrying out an AFA, or a portion of an AFA. Further,
this section only applies if the conflict was not addressed when the
AFA was first negotiated.

What must an Indian tribe/consortium do if an organizational
conflict of interest arises under an AFA?

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

Personal Conflicts

What is a personal conflict of interest?

A personal conflict of interest may arise when a person with
authority within the tribe/consortium has a financial interest that
may conflict with an interest of the tribe/consortium or an
individual beneficial owner of a trust resource.

When must an Indian tribe/consortium regulate its employees or
subcontractors to avoid a personal conflict of interest?

An Indian tribe/consortium must maintain written standards of
conduct, consistent with tribal law and custom, to govern officers,
employees, and agents (including subcontractors) engaged in
functions related to the management of trust assets and provide for
a tribally approved mechanism to resolve such conflicts of interest.

The federal proposal is overbroad and unnecessarily burdensome. The
proposed regulation imposes requirements on tribes with regard to the
``statutory obligations of the United States to third parties.''
Exactly how the tribes are to be given notice of these obligations is
unclear, yet the regulations proposed impose a duty on the tribes to
avoid conflicts with these third parties. The federal proposal includes
three regulations on ``personal conflicts'' which impose federal-type
standards onto tribes. Such requirements inhibit tribes from
legislating and regulating on their own and are a significant breach of
tribal sovereignty.
Federal view: The federal team believes that conflicts of interest
regulations are required to balance the federal-tribal government
relationship with the Secretary's trust responsibility under section
406(b) of Pub. L. 103-413 (25 U.S.C. 458ff(b)) to Indian tribes,
individual Indians and Indians with Trust allotments. The federal
proposal is essentially identical to the Pub. L. 93-638 (25 U.S.C. 450)
regulation adopted by the Secretaries of the Interior and Health and
Human Services. The federal proposal addresses two types of conflicts:
conflicts of the tribe or tribal organization itself (an
``organizational conflict''), and; conflicts of individual employees
involved in trust resource management.
Under the federal proposal, the conflicts of interest regulations
only apply if the AFA fails to provide equivalent protection against
conflicts of interest to these regulations.
The proposed federal regulations for an organizational conflict of
interest address only those conflicts discovered after the AFA is
signed.
Such conflicts occur when there is a direct conflict between the
financial interests of the Indian tribe/consortium and the financial
interests of the beneficial owners relating to trust resources; the
tribe and the United States relating trust resources; or an express
statutory obligation of the United States to third parties. If the
Indian tribe/consortium's AFA does not address conflicts of interest,
then the Indian tribe/consortium must immediately disclose the conflict
to the Secretary.
The proposed federal regulations for personal conflicts of interest
would require an Indian tribe/consortium to have a tribally-approved
mechanism to ensure that no officer, employee, or agent of the Indian
tribe/consortium has a financial or employment interest that conflicts
with that of the trust beneficiary. The proposal also prohibits such
individuals from receiving gratuities.
The federal proposal is as follows:

[[Page 7214]]

What is an organizational conflict of interest?

An organizational conflict of interest arises when there is a
direct conflict between the financial interests of the Indian tribe/
consortium and:
(a) The financial interests of beneficial owners of trust
resources;
(b) The financial interests of the United States relating to
trust resources, trust acquisitions, or lands conveyed or to be
conveyed pursuant to the Alaska Native Claims Settlement Act (43
U.S.C. 1601 et seq); or
(c) An express statutory obligation of the United States to
third parties. This section only applies where the financial
interests of the Indian tribe/consortium are significant enough to
impair the Indian tribe/consortium's objectivity in carrying out an
AFA.

What must an Indian tribe/consortium do if an organization conflict
of interest arises under an AFA?

When must an Indian tribe/consortium regulate its employees or
subcontractors to avoid a personal conflict of interest?

An Indian tribe/consortium must maintain written standards of
conduct to govern officers, employees, and agents (including
subcontractors) engaged in functions related to the management of
trust assets.

What types of personal conflicts of interest involving tribal
officers, employees or subcontractors would have to be regulated by
an Indian tribe/consortium?

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

What personal conflicts of interest must the standards of conduct
regulate?

The standards must prohibit an officer, employee, or agent
(including a subcontractor) from participating in the review,
analysis, or inspection of a trust transaction involving an entity
in which such persons have a direct financial interest or an
employment relationship. It must also prohibit such officers,
employees, or agents from accepting any gratuity, favor, or anything
of more than nominal value, from a party (other than the Indian
tribe/consortium) with an interest in the trust transactions under
review. Such standards must also provide for sanctions or remedies
for violating the standards.

May an Indian tribe/consortium elect to negotiate AFA provision on
conflict of interest to take the place of this regulation?

Yes. An Indian tribe/consortium and the Secretary may agree to
AFA provisions concerning either personal or organizational
conflicts that address the issues specific to the program included
in the AFA. Such provisions must provide equivalent protection
against conflicts of interests to these regulations. Agreed-upon
provisions shall be followed, rather than the related provisions of
this regulation. For example, the Indian tribe/consortium and the
Secretary may agree that using the Indian tribe/consortium's own
written code of ethics satisfied the objectives of the personal
conflicts provision of this regulation, in whole or in part.

Supply Sources

Tribal view: The tribal proposal differs from that of the federal
team in that the tribal representatives believe that it should be the
duty of the Department of the Interior to facilitate the relationship
with the General Services Administration. The tribal proposal would so
require in the regulation given the continuing difficulties tribes have
in accessing their full rights to receive services through the General
Services Administration. The tribal proposal reads:

Can a tribe/consortium use federal supply sources in the
performance of an AFA?

A tribe/consortium and its employees may use Federal supply
sources (including lodging, airline, interagency motor pool
vehicles, and other means of transportation) which must be available
to the tribe/consortium and to its employees to the same extent as
if the tribe/consortium were a federal agency. Implementation of
this section is the responsibility of the General Services
Administration (GSA). The Department of the Interior shall
facilitate the tribe/consortium's use of supply sources and assist
it to resolve any barriers to full implementation that may arise in
the GSA.

Federal view: The federal team maintains that only General Services
Administration (GSA) has the legal authority concerning a tribe's/
consortium's use of federal supply sources. Pub. L. 93-638 requires
that the tribes/consortia be treated as any other federal agency in use
of federal supply sources. The GSA is responsible for implementation
and approval for all federal agencies with respect to sources of
federal supplies. The federal proposal alerts the tribes/consortia to
the fact that they will receive the same treatment from GSA as all
other federal agencies. The Department of the Interior intends to work
with GSA to implement this provision. The federal proposal is as
follows:

Can a tribe/consortium use federal supply sources in the
performance of an AFA?

A tribe/consortium and its employees may use federal supply
sources (including lodging, airline, interagency motor pool
vehicles, and other means of transportation) which must be available
to the tribe/consortium and to its employees to the same extent as
if the tribe/consortium were a federal agency. Implementation of
this section is the responsibility of the General Services
Administration (GSA).

Leasing

Tribal view: There is no authority in the statute to limit the
rights of Self-Governance tribes compared to the rights of contracting
tribes or to impose limitations regarding the acquisition of property
not otherwise imposed by any existing statute or regulation Pub. L. 93-
638, section 105 (25 U.S.C. 450j(l)) states:

(l) Lease of facility used for administration and delivery of
services
(1) Upon the request of an Indian tribe or tribal organization,
the Secretary shall enter into a lease with the Indian tribe or
tribal organization that holds title to, a leasehold interest in, or
a trust interest in, a facility used by the Indian tribe or tribal
organization for the administration and delivery of services under
this Act.
(2) The Secretary shall compensate each Indian tribe or tribal
organization that enters into a lease under paragraph (1) for the
use of the facility leased for the purposes specified in such
paragraph. Such compensation may include rent, depreciation based on
the useful life of the facility, principal and interest paid or
accrued, operation and maintenance expenses, and such other
reasonable expenses that the Secretary determines, by regulation, to
be allowable.

Indeed, the regulation (25 CFR Sec. 900.69-900.72) adopted under Title
I, provides a laundry list of costs that may be included in the lease
compensation, but, consistent with the statute, nowhere does the Title
I regulation proscribe leases on buildings acquired from the federal
government or purchased with federal resources. The source of the
building is not relevant to the terms of the lease, nor does the fact
that the building may have been acquired through federal assistance
mean that the tribe is not experiencing costs associated with the
building that need to be compensated. The tribal representatives
propose either deleting this section entirely or making the Title I,
(Pub. L. 93-638) regulations, 25 CFR 900.69-900.72, applicable.
Federal view: The federal team proposal is drafted so that it
complies with Pub. L. 93-638, section 106 (25 U.S.C. section 450j(l)).
The federal proposal delineates limited circumstances that would not
allow

[[Page 7215]]

leasing arrangements if title to the facility was obtained by the tribe
through excess federal government property or if the construction of
the facility was federally financed. There is no rationale for the
federal government to pay twice--once for the construction of the
facility and again for the leasing back of that facility from the
tribe. The federal proposal is as follows:

Can a tribe/consortium lease its tribal facilities to the federal
government for use in the performance of an AFA?

(a) For BIA programs, the Secretary must enter into a lease with
the tribe/consortium to use tribal facilities for AFA programs. The
Secretary may enter into a lease only if appropriations are
available for implementation of section 105(l)(1) and (2) of Pub. L.
93-638, as amended (25 U.S.C. 450j(l)),
(b) This section does not apply to former federal facilities
acquired by a tribe/consortium as excess or surplus property, or to
construction projects by the tribe/consortium paid for with federal
funds, except to the extent that improvements to the facilities have
been made from other than federal funds.

Prompt Payment Act (Pub. L. 97-452, as Amended)

Tribal view: Tribal representatives note that Pub. L. 103-413,
section 403(g), (25 U.S.C. 458cc(g)) gives tribes and consortia the
right to receive payments under a self-governance agreement in advance
in the form of an annual or semi-annual installment, at the discretion
of the tribe or consortium. In addition, this section requires the
Secretary to provide funding for BIA and non-BIA programs that are
included in a self-governance agreement that are equal to the amount
that the tribe or consortium would be eligible to receive under Title I
of Pub. L. 103-413. Under section 108 of Title I (25 U.S.C. 450; (l),
the Prompt Payment Act is made applicable to all advance payments of
funds that are made to tribes under that Title. The Prompt Payment Act
should apply to all Department of the Interior programs which tribes
may assume under the Tribal Self-Governance Act of 1994, including all
BIA and non-BIA programs. No distinction between BIA and non-BIA
programs is drawn in Title I of Pub. L. 103-413 and none should be
drawn in Title IV of Pub. L.103-413. Accordingly, tribal
representatives proposed the following regulation:

Does the Prompt Payment Act apply?

Yes, the Prompt Payment Act applies to all programs funded under
the Tribal Self-Governance Act of 1994.

Federal view: The federal team understands that the Prompt Payment
Act is generally applicable to the extent goods and services are
provided in advance of payment rather than where the payment is made in
advance of the delivery. The Prompt Payment Act, (31 U.S.C. 3902(a)),
provides in pertinent part: ``* * * the head of an agency acquiring
property or service from a business concern, who does not pay the
concern for each complete delivered item of property or service by the
required payment date, shall pay an interest penalty to the concern on
the amount of the payment due.'' Congress established, in 31 U.S.C.
3902(h)(2)(B) statutory deadlines addressing the ``required payment or
loan closing date'' for various types of transactions. No such
statutory deadline is provided for agreements under the Tribal Self-
Governance Act of 1994, and the federal team is uncertain of its
authority to prescribe or how to prescribe such deadlines for advance
payments in the absence of more explicit instructions from Congress.
Appropriations law makes it impossible for the Department to distribute
funds in advance of the first day of a fiscal year, and delays in
bureaus receiving their annual appropriations and resulting funding
allocations often also result in delays beyond the Department's
control. Prompt payment interest penalties must be derived from
``amounts made available to carry out the program for which the penalty
is incurred'' and are not an authorization for additional
appropriations (31 U.S.C. 3902(e)). Pub. L. 103-413, 403(g)(3), (25
U.S.C. 458cc(g)(3)) generally requires the bureau to include all funds
it would have expended directly or indirectly for that portion of the
program, except for functions retained by the bureau either because
they are inherently federal or by agreement of the parties. It would
appear that Congress has not authorized funds to pay the interest
penalty without in turn first directly or indirectly reducing the
programs to be provided for that Self-Governance tribe. Moreover, using
funds intended for programs for other tribes or tribal organizations
would violate Pub. L. 103-413, section 406(a)), (25 U.S.C. 458ff(a)).
While the Model Agreement contained in section 108 of the ISDEA (Pub.
L. 93-638), as amended provides for the application of the Prompt
Payment Act, the Title I regulations (Pub. L. 93-638 (25 U.S.C. 450))
do not contain any language to implement that provision. Thus, the
federal team does not know how to implement this provision without
reducing funding or programs for the tribe involved, and therefore
requests public comments addressing such provisions.

Does the Prompt Payment Act (Pub. L. 97-452, as amended) apply?

Yes, the Prompt Payment Act (Pub. L. 97-452, as amended) applies
to programs eligible for contracting under Pub. L. 93-638 (25 U.S.C.
450).

Subpart R--Appeals

Tribal view: The tribal representatives have organized the appeals
section to provide a user-friendly format, without extensive internal
cross reference. The tribal representatives believe that it is easier
to identify the proper appeal forum based on the issue at hand rather
than reviewing the different forums available first and then deciding
whether the issue at hand fits.
A crucial part of the tribal proposal is that appeals be heard at
the level of the Assistant Secretary for the different bureaus. It is
the tribal view that the Tribal Self-Governance Act of 1994 vested
authority and discretion exclusively in the Secretary of the Interior.
Accountability for official decisions should be vested at a similarly
high level. Tribal representatives feel it would be inappropriate for
appeals to be heard by ``bureau heads'' who would likely be the
officials responsible for initial adverse decisions. The purpose of
``appeals'' is review by a higher authority who is removed from the
initial dispute. Moving discretionary decision-making down the
organizational level of the Department without clear and consistent
guideposts for the exercise of discretion should not be permitted below
the Assistant Secretary's level. The tribal representatives propose the
following:

1. What is the purpose of this subpart?

This subpart prescribes the process for resolving disputes with
Department officials which arise before or after execution of an AFA
and certain other disputes related to self-governance. This subpart
also describes the administrative process for reviewing disputes
related to compact provisions. This subpart describes the process
for administrative appeals to:
(a) The Interior Board of Indian Appeals (IBIA) for certain pre-
AFA disputes and reassumption of programs eligible for contracting
under Pub. L. 93-638 (25 U.S.C. 450);
(b) The Interior board of Contract Appeals (IBCA) for certain
post-AFA disputes;
(c) The bureau head for the bureau responsible for certain
disputed decisions; and
(d) The Secretary for reconsideration of decisions involving
self-governance compacts.

2. In general, how can a tribe appeal a decision of a bureau once
it has signed an AFA?

The tribes may refer to section 110 of Pub. L. 93-638 which
directs them to follow the

[[Page 7216]]

procedures found within the Contract Disputes Act Pub. L. 95-563 (41
U.S.C 601)), as amended. Generally, the provisions of section 110 of
Pub. L. 93-638 (25 U.S.C. 450m-l) apply to all issues arising from
agreements under the Tribal Self-Governance Act of 1994. The tribe
may sign an agreement, as well, and reserve issues for appeal under
the provisions of section 110. Exceptions are noted below in tribal
Question 3.

3. Are there any decisions which are not appealable under this
subpart?

Yes. The following types of decisions are not appealable under
this subpart.
(a) Decisions regarding requests for waivers of regulations
which are addressed in Subpart J of these regulations (Waivers).
(b) Decisions under any other statute, such as the Freedom of
Information Act and the Privacy Act. See 43 CFR Part 2.
(c) Decisions for which Subpart K--Construction provides
otherwise.

4. How can a tribe appeal a decision of a bureau official relative
to a Title I, Pub. L. 93-638 eligible program before it has signed
an AFA?

Any bureau decision regarding the self-governance program not
governed under the provisions of the Contract Disputes Act pursuant
to section 406(c) of Pub. L. 103-413 (25 U.S.C. 458ff(c)), and
except those listed under tribal Question 5, may be appealed within
30 days of notification to the IBIA under the provisions of 25 CFR
900.150(a)-(h), and 900.152-900.169. Tribes/consortiums wishing to
appeal an adverse decision must do so within 30 days of receiving
such decision. For purposes of such appeals only, the terms
``contract'' and ``self-determination contract'' shall mean annual
funding agreements under the Tribal Self-Governance Act of 1994. The
terms ``tribe'' and ``tribal organization'' shall mean ``tribe/
consortium.'' References to the Department of Health and Human
Services therein are inapplicable.

5. To whom are appeals directed regarding pre-award AFA decisions
of Department officials, other than those described in tribal
Question 4?

Using the procedures described in tribal Question 6, the
following pre-AFA disputes and decisions are appealable to the
Assistant Secretary of the bureau responsible for the decision or
dispute:
(a) Decisions regarding non-Title I (non Pub. L. 93-638)
eligible programs and disputes over failure to reach an agreement in
an AFA negotiation for non-Title I (non Pub. L. 93-638) eligible
programs pursuant to section 1000.173 of these regulations (``last
and best offer'').
(b) Decisions relating to planning and negotiation grants
(Subpart C--Planning and Negotiation Grants);
(c) Decisions involving a limitation and/or reduction of
services for BIA programs. (Subpart H--Limitation and/or Reduction
of Services for BIA Services, Contracts and Funds);
(d) Decisions regarding the eligibility of a tribe for admission
to the applicant pool;
(e) Decisions involving BIA residual functions or inherently
federal functions;
(f) Decisions declining to provide requested information on
federal programs, budget, staffing, and locations which are
addressed in Section 1000.162 of these regulations.
(g) Decisions related to a dispute between a consortium and a
withdrawing tribe.

6. How should a tribe/consortium appeal a pre-AFA decision
described in tribal Question 5?

A tribe/consortium may appeal such decision by making a written
request for review to the appropriate Assistant Secretary within 30
days of failure to reach agreement under section 1000.173. The
request should include a statement describing its reasons for
requesting the review, with any supporting documentation or indicate
that such a statement will be submitted within 30 days. A copy of
the request must also be sent to the Director of the Office of Self-
Governance.

7. Does the tribe have a right to an informal conference?

Yes. Within 30 days of submitting an appeal to the Assistant
Secretary under Question 5 above, the tribe may request an informal
conference with the Assistant Secretary or an appointed
representative of the Secretary. The Secretary cannot appoint the
official whose decision is being appealed as his representative.
This conference will be held within 20 days of request, unless
otherwise agreed between the parties, and 25 CFR 900.154 to 900.157
will govern the procedure of the informal conference.

8. When must an Assistant Secretary issue a decision in the
administrative review?

The Assistant Secretary must issue a written final decision
stating the reasons for such decision, and transmit it to the tribe/
consortium within 60 days of receipt of the request for review and
tribal statement of reasons. The Assistant Secretary's decision
shall be final for the Department unless reversed by the Secretary
upon a discretionary review in accordance with 43 CFR 4.4.

9. Can a tribe seek reconsideration of the Assistant Secretary's
decision?

Yes. The Tribe may request that the Secretary reconsider a final
Department decision by sending a written request for reconsideration
within 30 days of the receipt of the decision to the Secretary or
under 43 CFR 4.4. A copy of this request should also be sent to the
Director of the Office of Self-Governance.

10. How can a tribe/consortium seek reconsideration of the
Secretary's decision involving a self-governance compact?

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

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

The Secretary will respond in writing to the tribe/consortium
within 30 days of receipt of the tribe/consortium's request for
reconsideration.

12. How should a tribe/consortium appeal a Department decision or
dispute regarding a signed AFA?

Sections 110 and 406(c) of the Pub. L. 103-413 (25 U.S.C. 450m-l
and 458ff(d), respectively) make the Contracts Disputes Act (CDA)
(Pub. L. 95-563; 41 U.S.C. 601), as amended applicable to all
disputes regarding signed self-governance AFAs, and give tribes/
consortiums the right to appeal directly to federal district court
or to appeal administratively to the Interior Board of Contract
Appeals (IBCA). Administrative appeals regarding post-AFA are
governed by 25 CFR 900.216-900.230, except that appeals of decisions
regarding reassumption of programs are governed by 25 CFR 900.170-
900.176, and except for the types of decisions described in tribal
Question 3, which are not appealable under this subpart.

Federal view: The Federal proposals would establish a process for
resolving disputes with Department officials which arise both before
and after the execution of AFAs. Depending upon the precise matter for
which review is sought, appeals of decisions are made to either the
IBIA, the IBCA or the head of the particular bureau. Reconsideration of
decisions relating to the terms of compacts (as opposed to AFAs)
between a tribe/consortium and the Secretary would be submitted to the
Secretary. As a general matter, the IBIA would be responsible for
appeals relating to pre-award issues and reassumption for imminent
jeopardy concerning programs eligible for contracting under Pub. L. 93-
638; the IBCA under the Contract Disputes Act (Pub. L. 93-563) for
appeals concerning post-award disputes other than reassumption for
imminent jeopardy; and bureau heads for matters entailing some degree
of discretionary decision-making by an appropriate bureau official.
This role for the bureau heads is consistent with normal Departmental
practices and also recognizes the generally greater familiarity of
bureau heads than the programmatic assistant secretaries for the types
of issues to be decided. In accordance with Subpart K of the proposed
regulations, appeals from disputes surrounding suspension of work under
section 1000.230 of these regulations are made like other post-award
disputes under the CDA.
The federal proposal follows:

1. What is the purpose of this subpart?

This subpart prescribes the process for resolving disputes with
Department officials

[[Page 7217]]

which arise before or after execution of an AFA or as a result of a
reassumption of an AFA and certain other disputes related to self-
governance. This subpart also describes the administrative process
for reviewing disputes related to compact provisions. This subpart
describes the process for administrative appeals to:
(a) The Interior Board of Indian Appeals (IBIA) for certain pre-
AFA disputes and reassumption of programs eligible for contracting
under Pub. L. 93-638 (25 U.S.C. 450);
(b) The Interior Board of Contract Appeals (IBCA) for certain
post-AFA disputes;
(c) The bureau head for the bureau responsible for certain
disputed decisions; and
(d) The Secretary for reconsideration of decisions involving
self-governance compacts.

2. What decisions are appealable to the IBIA?

(a) Except for pre-award matters described in federal Question
5(b)-(d), (f) and (g), decisions of Department officials made before
the signing of an AFA under the Tribal Self-Governance Act of 1994
that involve programs eligible for contracting under Pub. L. 93-638
are appealable to the IBIA. The provisions of 25 CFR 900.150(a)-(h),
900.151-900.169 are applicable. For purposes of such appeals only,
the terms ``contract'' and ``self-determination contract'' shall
mean annual funding agreements under the Tribal Self-Governance Act
of 1994. The term ``tribe'' shall mean ``tribe/consortium.''
References to the Department of Health and Human Services therein
are inapplicable.
(b) Decisions to reassume a program that is eligible for
contracting under Pub. L. 93-638, after the failure of the tribe to
adequately respond or mitigate, or decisions to suspend or delay
payment for a program that is eligible for contracting under Pub. L.
93-638. The provisions of 25 CFR 900.170 to 900.175 apply, except as
otherwise provided in Subpart K--Construction.
(c) If a tribe does not appeal a decision to the IBIA within 30
days of receipt of the decision, the decision will be final for the
Department.

3. What decisions are appealable to the Interior Board of Contract
Appeals (IBCA) under this section?

Post-award AFA decisions of Department officials are appealable
to IBCA, except appeals covered in federal Questions 2(b), 5(c),
5(e), and 5(g) of this subpart and decisions involving reassumption
for imminent jeopardy, non-Pub. L. 93-638 programs, and all
construction disputes.

4. What statutes and regulations govern resolution of disputes
concerning signed AFAs that are appealed to the IBCA?

Section 110 of Pub. L. 93-638 (25 U.S.C. 450m-l) and the
regulations at 25 CFR 900.216-900.230 apply to disputes concerning
signed AFAs that are appealed to the IBCA, except that any
references to the Department of Health and Human Services are
inapplicable. For the purposes of such appeals only, the terms
``contract'' and ``self-determination contract'' shall apply to AFAs
under the Tribal Self-Governance Act of 1994.

5. What decisions are appealable to the bureau head for review?

(a) Pre-award AFA decisions of Department officials, other than
those described in federal Question 2 of this subpart, shall be
directed to the bureau head. For example, a review involving a non-
Pub. L. 93-638 program.
(b) Decisions of Department officials that a tribe is not
eligible for admission to the applicant pool.
(c) Pre-AFA and post-AFA decisions of a Department official,
other than a BIA official, on whether an AFA would limit or reduce
other AFAs, services, contacts, or funds under Pub. L. 93-638, or
other applicable federal law, to an Indian tribe/consortium or
tribal organization that is not a party to the AFA.
(d) Decisions involving BIA residual functions. (See sections
1000.91 and 1000.92--BIA AFAs in these draft regulations.)
(e) Decisions involving reassumption for imminent jeopardy for
non-Pub. L. 98-638 programs.
(f) Decisions declining to provide requested information on
federal programs, budget, staffing, and locations which are
addressed in subpart 1000.162 of these regulations.
(g) Decisions related to a dispute between a consortium and a
withdrawing tribe (1000.34).

6. When and how must a tribe/consortium appeal a decision to the
bureau head?

If a tribe/consortium wishes to appeal a decision to the bureau
head it must make a written request for review to the appropriate
bureau head within 30 days of receiving the initial adverse
decision. The request should include a statement describing its
reasons for requesting a review, with any supporting documentation
or indicate that such a statement will be submitted within 30 days.
A copy of the request must also be sent to the Director of the
Office of Self-Governance.
If a tribe does not request a review within 30 days of receipt
of the decision, the decision will be final for the Department.

7. When must the bureau head issue a decision in the administrative
review?

The bureau head must issue a written final decision stating the
reasons for such decision, and transmit it to the tribe/consortium
within 60 days of receipt of the request for review and the
statement of reasons.

8. What is the effect of the bureau head's decision in an
administrative review?

The decision is final for the Department.

9. May tribes/consortia appeal Department decisions to a U.S.
District Court?

Yes. Tribes/consortia may choose to appeal decisions of
Department officials relating to the self-governance program to a
U.S. Court, as authorized by section 110 of Pub. L. 93-638 (25
U.S.C. 450m-l) , or other applicable law.

10. How can a tribe/consortium seek reconsideration of the
Secretary's decision involving a self-governance compact?

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

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

The Secretary will respond in writing to the tribe/consortium
within 30 days of receipt of the tribe/consortium's request for
reconsideration.

12. Are there any decisions which are not appealable under this
section?

Yes. The following types of decisions are not appealable under
this subpart:
(a) Decisions regarding requests for waivers of regulations
which are addressed in Subpart J of these regulations. (Waivers)
(b) Decisions relating to planning and negotiation grants in
section 1000.71 of these regulations. Subpart D--Other Financial
Assistance for Planning and Negotiation Grants for Non-BIA Programs.
(c) Decisions relating to discretionary grants under section 103
of Pub. L. 93-638 (25 U.S.C. 450h) which may be appealed under 25
CFR Part 2.
(d) Decisions under any other statute, such as the Freedom of
Information Act and the Privacy Act. See 43 CFR Part 2.
(e) Decisions involving a limitation and or reduction of service
for BIA programs. Subpart H--Limitation and/or Reduction of Services
for BIA Services, Contracts, and Funds.
(f) Decisions for which Subpart K--Construction provides
otherwise.

13. What procedures apply to post-award construction disputes
except for reassumptions for imminent jeopardy?

The Contract Disputes Act procedures (Pub. L. 95-593 (41 U.S.C.
601), as amended)

Subpart S--Property Donation Procedures

Tribal view: Section 406(c) of Title IV (Pub. L. 103-413; 25 U.S.C.
458ff (c)) specifically incorporates section 105(f) of Pub. L. 93-638
(25 U.S.C. 450; (f)), a provision which gives tribes significant rights
relating to the transfer of BIA and non-BIA property to tribes for use
under a contract or AFA. In June 1996, the Departments of the Interior
and Health and Human Services promulgated joint regulations
implementing Pub. L. 93-638, including section 105(f). See 25 CFR 900
et seq. The regulations make clear that transfer of property under
section 105(f) applies to BIA and non-BIA property.
The regulations promulgated under Pub. L. 93-638 implementing
section 105(f) apply equally to Title IV--for

[[Page 7218]]

both BIA and non-BIA programs. Tribal representatives proposed
regulations that closely tracked 25 CFR 900.85-900.107.

Government-Furnished Property

1. How does an Indian tribe/consortium obtain title to property
furnished by the federal government for use in the performance of a
self-governance agreement pursuant to section 105(f)(2)(A) of Pub. L.
93-638 (25 U.S.C. 450; (f))(2)(A)?

(a) For federal government-furnished personal property made
available to an Indian tribe/consortium before October 25, 1994:
(1) The Secretary, in consultation with each Indian tribe/
consortium, shall develop a list of the property used in a self-
governance agreement.
(2) The Indian tribe/consortium shall indicate any items on the
list to which the Indian tribe/consortium wants the Secretary to retain
title.
(3) The Secretary shall provide the Indian tribe/consortium with
any documentation needed to transfer title to the remaining listed
property to the Indian tribe/consortium.
(b) For federal government-furnished real property made available
to an Indian tribe/consortium before October 25, 1994:
(1) The Secretary, in consultation with the Indian tribe/
consortium, shall develop a list of the property furnished for use in a
self-governance agreement.
(2) The Secretary shall inspect any real property on the list to
determine the presence of any hazardous substance activity, as defined
in 41 CFR 101-47.202.2(b)(10). If the Indian tribe/consortium desires
to take title to any real property on the list, the Indian tribe/
consortium shall inform the Secretary, who shall take such steps as
necessary to transfer title to the Indian tribe/consortium.
(c) For federal government-furnished real and personal property
made available to an Indian tribe/consortium on or after October 25,
1994:
(1) The Indian tribe/consortium shall take title to all property
unless the Indian tribe/consortium requests that the United States
retain the title.
(2) The Secretary shall determine the presence of any hazardous
substance activity, as defined in 41 CFR 101-47.202.2(b)(10).

2. What should the Indian tribe/consortium do if it wants to obtain
title to federal government-furnished real property that includes land
not already held in trust?

If the land is owned by the United States but not held in trust for
an Indian tribe or individual Indian, the Indian tribe/consortium shall
specify whether it wants to acquire fee title to the land or whether it
wants the land to be held in trust for the benefit of a tribe.
(a) If the Indian tribe/consortium requests fee title, the
Secretary shall take the necessary action under federal law and
regulations to transfer fee title.
(b) If the Indian tribe/consortium requests beneficial ownership
with fee title to be held by the United States in trust for an Indian
tribe:
(1) The Indian tribe/consortium shall submit with its request a
resolution of support from the governing body of the Indian tribe in
which the beneficial ownership is to be registered.
(2) The Secretary of the Interior shall expeditiously process all
requests in accordance with applicable federal law and regulations.
(3) The Secretary shall not require the Indian tribe/consortium to
furnish any information in support of a request other than that
required by law or regulation.

3. When may the Secretary elect to reacquire federal government-
furnished property whose title has been transferred to an Indian tribe/
consortium?

(a) Except as provided in paragraph (b) of this section, when a
self-governance agreement, or portion thereof, is retroceded,
reassumed, terminated or expires, the Secretary shall have the option
to take title to any item of federal government-furnished property for
which:
(1) title has been transferred to an Indian tribe/consortium;
(2) is still in use in the program; and
(3) has a current fair market value, less the cost of improvements
borne by the Indian tribe/consortium, in excess of $5,000.
(b) If property referred to in paragraph (a) of this section is
shared between one or more ongoing self-governance agreements and a
self-governance agreement is retroceded, reassumed, terminated or
expires, and the Secretary wishes to use such property in the
retroceded or reassumed program, the Secretary and the Indian tribe/
consortium using such property shall negotiate an acceptable
arrangement for continued sharing of such property and for the
retention or transfer of title.

4. Does government-furnished real property to which an Indian tribe/
consortium has taken title continue to be eligible for facilities
operation and maintenance funding from the Secretary?

Yes.

Property Purchased by an Indian Tribe/Consortium

5. Who takes title to property purchased with funds under a self-
governance agreement pursuant to section 105(f)(2)(A) of Pub. L. 93-638
(25 U.S.C. 450j (f)(2)(A))?

The Indian tribe/consortium takes title to such property, unless
the Indian tribe/consortium chooses to have the United States take
title. In that event, the Indian tribe/consortium must inform the
Secretary of the purchase and identify the property and its location in
such manner as the Indian tribe/consortium and the Secretary deem
necessary. A request for the United States to take title to any item of
Indian tribe/consortium-purchased property may be made at any time. A
request for the Secretary to take fee title to real property shall be
expeditiously processed in accordance with applicable federal law and
regulation.

6. What should the Indian tribe/consortium do if it wants Indian tribe/
consortium-purchased real property that it has purchased to be taken
into trust?

The Indian tribe/consortium shall submit a resolution of support
from the governing body of the Indian tribe in which the beneficial
ownership is to be registered. The Secretary of the Interior shall
expeditiously process all requests in accord with applicable federal
law and regulation.

7. When may the Secretary elect to acquire title to Indian tribe/
consortium-purchased property?

(a) Except as provided in paragraph (b) of this section when a
self-governance agreement, or portion thereof, is retroceded,
reassumed, terminated or expires, the Secretary shall have the option
to take title to any item of tribe/consortium-purchased property:
(1) Whose title has been transferred to an Indian tribe/consortium;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe/consortium, in excess of $5,000.
(b) If property referred to in paragraph (a) of this section is
shared between one or more ongoing self-governance agreements and a
self-governance agreement that is retroceded, reassumed, terminated or
expires, and the Secretary wishes to use such property in the
retroceded or reassumed program, the Secretary and the Indian tribe/
consortium using such property

[[Page 7219]]

shall negotiate an acceptable arrangement for continued sharing of such
property and for the retention or transfer of title.

8. Is Indian tribe/consortium-purchased real property to which an
Indian tribe/consortium holds title eligible for facilities operation
and maintenance funding from the Secretary?

Yes.
Tribal representatives believe that the federal position
misinterprets section 105(f) (25 U.S.C. 450j(f)) and is incorrect in
any conclusion that section 105(f) does not apply to non-BIA property.
Initially, it should be pointed out that the federal representatives
position is inconsistent with the position taken by the Department of
the Interior during the Title I (Pub. L. 93-638) rulemaking process--
the final rules promulgated in 25 CFR sections 900.87-900.94 clearly
apply to non-BIA, as well as BIA, programs. There is no reason why the
Department should change this interpretation in Title IV; doing so
would violate Congressional direction that self-governance ``co-exist''
with the Self-Determination Act (see section 203 of Title IV (Pub. L.
103-413) and section 1000.4(b)(3) of the proposed regulations).
Clearly, if regulations implementing the same statutory provisions
under Title I conflict with regulations under Title IV, the two titles
do not ``co-exist,'' they ``conflict.''
The federal representatives argument is based on an incorrect
reading of section 105(f)(2). First, section 105(f)(2) provides that
the Secretary ``may'' ``donate'' IHS, BIA, or GSA property--clearly a
discretionary act, while section 105(f)(2)(A) provides that title to
property and equipment furnished by the federal government, ``shall
vest'' in the tribe, clearly a command where the Secretary has no
discretion.
It is evident from the different language used in these two
provisions that they have very different purposes; they address
different types of property and give the Secretary some or no
discretion. Furthermore, if Congress wanted to limit section
105(f)(2)(A) to GSA, IHS, and BIA property, as the federal
representatives assert, it would have said so in the section. The use
of ``government-furnished property'' clearly indicated an intent to
refer to property other than GSA, IHS, or BIA. Finally, the term
``except'' can grammatically be read as a signal that the contents of
section 105(f)(2)(A) are not subject to the limitations set forth in
section 105(f)(2), which would as the federal representatives assert,
give meaning to every word in the statute.
Federal view: It is the federal team's view that section
105(f)(2)(A) of Pub. L. 93-638 (25 U.S.C. 450j(f)(2)(A)) does not apply
to non-BIA bureaus.
Prior to the 1994 amendments, section 105(f)(2) of Pub. L. 93-638
gave the Secretary discretion to donate personal BIA excess property,
including contractor-purchased property as one type of ``excess'' BIA
property:

But, as the legislative history of section 2(12) of S. 2036 (the
Senate Bill section which revised section 105(f)(2)(A), (B) and (C))
indicates, Congress decided to treat contractor-purchased property and
federal government-furnished property exactly the same as under federal
grant procedures:

Section 2(12) amends section 105(f)(2) to address both the
acquisition of property with contract funds after a contract has
been awarded and also the management of government-furnished
property. Currently, standard grant regulations provide that title
to property purchased with grant funds vests in the grantee. The
amendment extends the same policy to property purchased with self-
determination contract funds. The policy reasons underlying the
Self-Determination Act strongly counsel in favor of such a regime,
and the amendment eliminates the need for a technical ``donation''
of the property in such circumstances. At the same time, the
amendment provides a mechanism for the return of property still in
use to the Secretary, in the event a contracting program is
retroceded back to the federal government. Finally, in conjunction
with Paragraph 1(b)(7) of the model contract set forth in section 3
of the bill, the amendment assures that, although title to such
property will vest in the tribe or tribal organization, the
Secretary is to treat such property in the same manner for purposes
of replacement as he or she would have had title to the property
vested of the government. S. Rpt. No. 103-374, 103d Cong., 2d Sess.
7 (1994).

Thus, section 105(f)(2)(A) of Pub. L. 93-638 (25 U.S.C. 450j
(f)(2)(A)) now gives title to a tribe just as grant procedures give
title to a grantee. Also, Congress eliminated the need to go through
time consuming donation procedures applicable to other excess property
and allow for automatic vesting of title at the option of the tribe for
contractor-purchased and federal government-furnished property. There
was no intent to change the agencies to which these provisions applied;
i.e., BIA, IHS, and GSA, and indeed, no such change was made.
The significance of this modification of section 105(f)(2) of Pub.
L. 93-638 is that the recrafting of section 105(f)(2)(A) continued to
be limited to BIA, IHS and GSA:

(f) In connection with any self-determination contract or grant
made pursuant to section 102 or 103 of this Act, the appropriate
Secretary may--
(2) donate to an Indian tribe or tribal organization title to
any personal or real property found to be excess to the needs of the
Bureau of Indian Affairs, the Indian Health Service, or the General
Services Administration, except that--
``(A) subject to the provisions of subparagraph (B), title to
property and equipment furnished by the Federal Government for use
in the performance of the contract or purchased with funds under any
self-determination contract or grant agreement shall, unless
otherwise requested by the tribe or tribal organization, vest in the
appropriate tribe or tribal organization;

Had Congress intended to change the clear limitation of the pre-
1994 Amendment language of section 105(f)(2) of Pub. L. 93-638 to
include non-BIA bureaus, it surely would have modified this continued
reference to only BIA, IHS, and GSA in this section. However, it did
not. While making a significant change by allowing title to
automatically pass to tribes for contractor-purchased and federal
government-furnished excess property, it made absolutely no change to
the above-referenced agencies to which these rights apply. Even though
section 105(f)(2)(A) refers to the ``Federal Government'' and ``any
self-determination contract'' this subsection must be read within the
context of its antecedent parent clause in subsection (2), which limits
applicability to only the BIA, IHS, and GSA. This is the most
reasonable interpretation of these provisions. To do otherwise, would
require reading the terms ``Bureau of Indian Affairs, Indian Health
Service, and General Services Administration'' completely out of
section 105(f)(2), (25 U.S.C. 450j(f)(2), when interpreting subsection
(A) of section 105(f)(2). This would certainly ignore the mandate of
statutory interpretation to give meaning to all words of a statute.
In addition, the term ``except'' preceding ``(A),'' is defined in
Webster's Collegiate Dictionary to mean ``to take out from a number or
whole,'' i.e., a part of the whole. Thus, the whole is section
105(f)(2), which applies to BIA, IHS, and GSA, and ``A'' is part of
section

[[Page 7220]]

105(f)(2) and is also limited to BIA, IHS, and GSA.
Furthermore, the legislative history for this section, as discussed
above, indicates it was intended that title to property purchased with
contract funds or furnished by the federal government should vest
``automatically'' and the amendment eliminates the need for a technical
donation of the property. Thus, the Congressional intent was that
donation procedures should be avoided for federal government-furnished
and contract-funded property. Clearly, paragraphs (A), (B), and (C)
were not stand-alone provisions, but were an integral part of
subsection (2), in order to limit ``donation'' procedures in subsection
(2) to only excess property, while providing the automatic vesting
concept in paragraph (A) for federal government-furnished and contract-
funded property. Therefore, it also follows that paragraphs (A), (B),
and (C), like subsection (2), apply only to the agencies referenced in
subsection (2); i.e., BIA, IHS, and GSA.
Nor do we agree with the tribal representatives that subpart I of
Pub. L. 93-638 regulations, published on June 24, 1996, resolved the
issue of applicability of section 105(f)(2)(A), (25 U.S.C. 450j
(f)(2)(A)) to non-BIA bureaus. The 25 CFR sections 900.87 and 900.91
refer only to title transfers when section 105(f)(2)(A) applies, but do
not state to which bureaus section 105(f)(2)(A) does apply. The Pub. L.
93-638 rulemaking therefore left open for litigation whether it applies
to non-BIA bureaus. The Department of the Interior believes that
section 105(f)(2)(A) does not apply to non-BIA programs under the
Tribal Self-Governance Act of 1994 or Pub. L. 93-638.
The Tribal Self-Governance Act of 1994 does not authorize and other
statutes prohibit the transfer of title to non-BIA real property. For
example, nothing in that Act provides a basis for transferring title
from the United States to a Self-Governance tribe of a portion of a
national park or a national wildlife refuge because an AFA permits a
tribe to administer a program within a park or refuge under section
403(c), (25 U.S.C. 458cc(c)) of the Act. An AFA with BLM to conduct
cadastral survey work in Alaska relating to conveyances for Native
allotments would not permit the transfer of title to such property to
the Self-Governance tribe/consortium. Similarly, federal reclamation
law prohibits the transfer of title to reclamation projects without the
specific approval of Congress.

Summary of Regulations

Subpart A--General Provisions

This subpart contains the Congressional policy as stated in the
Tribal Self-Governance Act of 1994 and adds the Secretarial policy that
will guide the implementation of the Act by the Secretary and the
various bureaus of the Department of the Interior. The subpart also
defines terms used throughout the rule.

Subpart B--Selection of Additional Tribes for Participation in Tribal
Self-Governance

This subpart describes the steps a tribe/consortium must take to
participate in tribal self-governance and how a tribe can withdraw from
a consortium's AFA. Under the Act, a tribe/consortium must first be
admitted into the applicant pool and then be selected for
participation. The applicant pool contains those tribes/consortia that
the Director of the Office of Self-Governance (OSG) has determined are
eligible to participate in self-governance.
The Director, OSG may select up to 50 tribes or consortia of tribes
from the applicant pool for negotiation. If there are more tribes in
the applicant pool than are to be selected to negotiate in any given
year, the Director will choose tribes/consortia based upon the earliest
postmark date of completed applications.
The rule also stipulates that a tribe/consortium may be selected to
negotiate an AFA for non-BIA programs that are otherwise available to
Indian tribes without first negotiating an AFA for BIA programs.
However, to negotiate for a non-BIA program under Pub. L. 103-413,
section 403(c), (25 U.S.C. 458cc(c)) for which the tribe/consortium has
only a geographic, cultural, or historical connection, the Act requires
that the tribe/consortium must first have an AFA with the BIA, under
section 403(b)(1) Pub. L. 103-413; (25 U.S.C. 458cc(b)(1)) or any non-
BIA bureau under section 403(b)(2), (25 U.S.C. 458cc(b)(2)). (The term
``programs'' as used in the rule and in this preamble refers to
complete or partial programs, services, functions, or activities.)
Subpart B also describes what happens when a tribe wishes to
withdraw from a consortium's AFA. In such instances, the withdrawing
tribe must notify the consortium, appropriate DOI bureau, and OSG of
its intent to withdraw 180 days before the effective date of the next
AFA. Unless otherwise agreed to, the effective date of the withdrawal
will be the date on which the current agreement expires.
In completing the withdrawal, the consortium's AFA must be reduced
by that portion of funds attributable to the withdrawing tribe on the
same basis or methodology upon which the funds were included in the
consortium's AFA. If such a basis or methodology does not exist, then
the tribe, consortium, appropriate DOI bureau, and OSG must negotiate
an appropriate amount. A tribe may not withdraw from a consortium's AFA
in any other part of the year unless all parties agree.

Subpart C--Section 402(d) Planning and Negotiation Grants

Subpart C describes the criteria and procedures for awarding
various self-governance negotiation and planning grants. These grants
are discretionary and will be awarded by the Director of the OSG. The
award amount and number of grants depends upon Congressional
appropriation. If funding in any year is insufficient to meet total
requests for grants and financial assistance, priority will be given
first to negotiation grants and second to planning grants.
Negotiation grants are non-competitive. In order to receive a
negotiation grant, a tribe/consortium must first be selected from the
applicant pool and then submit a letter affirming its readiness to
negotiate and requesting a negotiation grant. This subpart also
indicates that tribe/consortium may also elect to negotiate for a self-
governance agreement if selected from the applicant pool without
applying for or receiving a negotiation grant. Planning grants will be
awarded to tribes/consortia requesting financial assistance in order to
complete the planning phase requirement for admission into the
applicant pool.

Subpart D--Other Financial Assistance for Planning and Negotiating
Grants for Non-BIA Programs

This subpart describes the other financial assistance for planning
and negotiating non-BIA programs available to any tribe/consortium
that:
(a) Has an existing AFA;
(b) Is in the applicant pool; or
(c) Has been selected from the applicant pool.
Tribes/consortia may submit only one application per year for a
grant under this subpart. This financial assistance will support
information gathering, analysis, and planning activities that may
involve consulting with appropriate non-BIA bureaus, and negotiation
activities.
Subpart D outlines what must be submitted in the application and
the criteria used to rank the applications.

[[Page 7221]]

Subpart E--Annual Funding Agreements for Bureau of Indian Affairs
Programs

This subpart describes the components of an Annual Funding
Agreement (AFA) for BIA programs. An AFA is a legally binding and
mutually enforceable written agreement between a self-governance tribe/
consortium and the BIA. It specifies the programs that are to be
performed by the BIA as inherently federal functions, programs
transferred to the tribe/consortium, and programs retained by the BIA
to carry out for the self-governance tribe. The division of the
responsibilities between the tribe/consortium and the BIA is to be
clearly stated in the AFA.
Subpart E states that a tribe/consortium may include BIA-
administered programs in its AFA regardless of the BIA agency or office
that performs the program. The Secretary must provide to the tribe/
consortium:
(a) Funds equal to what the tribe/consortium would have received
under contracts and grants under Title I of Pub. L. 93-638 (25 U.S.C.
450);
(b) Any funds specifically or functionally related to providing
services to the tribe/consortium by the Secretary; and
(c) Any funds that are otherwise available to Indian tribes for
which appropriations are made to other agencies other than the
Department of the Interior.
Except for construction, a tribe/consortium may redesign a program
without approval from the BIA except when the redesign first requires a
waiver of a Departmental regulation. Redesign does not entitle tribes/
consortia to an increase in the negotiated funding amount.
In determining the funding amount to be included in an AFA, this
subpart defines residual funds as those funds needed to carry out the
inherently federal functions of the BIA should all tribes assume
programmatic responsibility. The residual level will be determined
through a process that is consistent with the overall process used by
the BIA.
The subpart defines tribal shares as the amount determined for that
tribe/consortium from a particular program. Tribal share amounts may be
determined by either:
(a) A formula that has a reasonable basis in the function or
service performed by the BIA office and is consistently applied to all
tribes served by the area and agency offices; or
(b) On a tribe-by-tribe basis, such as awarded competitive grants
or special project funding.
Funding amounts may be adjusted while the AFA is in effect in order
to adjust for certain Congressional actions, correct a mistake, or if
there is mutual agreement. During the year, a tribe/consortium may
reallocate funds between programs without Secretarial approval.
This subpart also defines base budgets as the amount of recurring
funding identified in the annual budget of the President as adjusted by
Congressional action. Base budgets are derived from:
(a) A tribe/consortium's Pub. L. 93-638 contract amounts;
(b) Negotiated amounts of agency, area, and central office funding;
(c) Other recurring funding;
(d) Special projects, if applicable;
(e) Programmatic shortfall; and
(f) Any other general increases/decreases to tribal priority
allocations that might include pay, retirement, or other inflationary
cost adjustments.
Base budgets do not include any non-recurring program funds,
Congressional earmarks, or other funds specifically excluded by
Congress.
If a tribe/consortium had funding amounts included in its base
budgets or was base eligible before these regulations, the tribe/
consortium may retain the amounts previously negotiated. Once base
budgets are established, a tribe/consortium need not renegotiate these
amounts unless it wants to. If the tribe/consortium wishes to
renegotiate, it also would be required to renegotiate all funding
included in the AFA on the same basis as all other tribes.

Subpart F--Non-BIA Annual Self-Governance Compacts and Funding
Agreements

This subpart describes program eligibility, funding for, and terms
and conditions relating to AFAs covering non-BIA programs. This subpart
also establishes procedures for consultation with tribes for
preparation of an annual listing in the Federal Register of non-BIA
programs that are eligible for negotiation by self-governance tribes.
Although the committee reached a consensus on most of the provisions
pertaining to AFAs for non-BIA programs, no agreement was reached on
several questions concerning program eligibility. See the explanation
of matters in disagreement found elsewhere in this preamble.
Sections 1000.112 through 1000.125 of these proposed regulations
contain rules on the eligibility of programs for inclusion in AFAs.
Under the Tribal Self-Governance Act of 1994, non-BIA programs are
eligible for negotiation and inclusion in AFAs based on either section
403(b)(2), (25 U.S.C. 458cc(b)(2)) (pertaining to programs available to
Indians), or section 403(c), (25 U.S.C. 458cc(c)) (pertaining to
programs of special geographic, historical, or cultural significance to
the participating tribe/consortium).
These provisions reflect the discretion afforded by the Act with
respect to the terms or eligibility of non-BIA programs for inclusion
in AFAs, as compared to agreements covering BIA programs. For instance,
section 403(b)(2) authorizes a non-BIA bureau to negotiate terms that
it may require in AFAs and section 403(b)(3) allows redesign and
consolidation of non-BIA programs or reallocation of funds when the
parties agree.
Sections 1000.126 through 1000.131 of these proposed regulations
describe how AFA funding is determined. Programs that would be eligible
for self-determination contracts under Title I of the Indian Self-
Determination and Education Assistance Act (ISDEA) (Pub. L. 93-638, as
amended) are to be funded at the same level as required for self-
determination contracts.
Programs which are only available because of a special geographic,
historical, or cultural significance eligible under section 403'' of
the Tribal Self-Governance Act of 1994 are not eligible for self-
determination contracting. The regulations provide that such programs
generally are to be funded at the level that would have been spent by
the bureau to operate the program, plus provisions for allowable
indirect costs. The latter are generally based on rates negotiated by
the Department of the Interior Inspector General, or the Inspector
General of another applicable federal agency.

Subpart G--Negotiation Process for Annual Funding Agreements

This subpart establishes the process and time lines for a newly
selected or participating tribe/consortium wishing to negotiate either
an initial or a successor AFA with any DOI bureau. Under subpart G, the
negotiation process consists of two phases, an information phase and a
negotiation phase.
In the information phase, any tribe/consortium that has been
admitted to the self-governance program or to the applicant pool may
submit requests for information concerning programs they wish to
administer under the Tribal Self-Governance Act of 1994. Although this
phase is not mandatory, it is expected to facilitate successful
negotiations by providing for a timely exchange of information on the
requested programs.

[[Page 7222]]

The negotiation phase establishes detailed time lines and
procedures for conducting negotiations with tribes that have been
accepted into the self-governance program, identifying the
responsibilities of the tribe/consortium and bureau representatives in
the negotiation process, and for executing AFAs.
The proposed deadlines for the negotiation process were chosen by
the committee to reflect the availability of annual budget information
and the time needed for the bureau and the tribe/consortium to reach an
agreement and the requirement under the Tribal Self-Governance Act of
1994 that each AFA must be submitted for Congressional review at least
90 days before its proposed effective date.
This subpart also establishes, in sections 1000.173 through
1000.175, rules for the negotiation process for successor AFAs. A
successor agreement is a funding agreement negotiated with a particular
bureau after an initial agreement with that bureau. The procedures for
negotiating a successor agreement are the same as those for initial
agreements. The committee expects, however, that successor agreements
will build upon the prior agreements and will result in an expedited
and simplified negotiation process.
The model compact serves as an umbrella document to recognize the
government-to-government relationship between the tribe(s) and the
Department. Self-governance tribes may choose to execute a compact with
the Secretary but are not required to do so in order to enter into AFAs
with Departmental bureaus. A model self-governance compact is provided
in Appendix A. The model compact is not the same as an AFA and is not
intended to replace, duplicate or lessen the importance of the AFA.
Proposed section 1000.153 permits the parties to agree to additional
terms and conditions for inclusion in compacts.
The Committee agreed that for BIA programs only, a tribe/consortium
may elect to continue under the terms of its pre-regulation compact as
long as those provisions are in compliance with other federal laws and
are consistent with these regulations. For BIA programs, a tribe/
consortium may include any term that may be included in a contract
under Title I (Pub. L. 93-638; 25 U.S.C. 450) in the model compact.

Subpart H--Limitation and/or Reduction of Services, Contracts, and
Funds

This subpart describes the process used by the Secretary to
determine whether the implementation of an AFA will cause a limitation
or reduction in services, contracts or funds to any other Indian tribe/
consortium or tribal organization as prohibited by section 406(a) of
Pub. L. 93-638 (25 U.S.C. 458ff(a)). Subpart H applies only to BIA
programs and does not apply to the general public and non-Indians.
The BIA may raise the issue of limitation and/or reduction of
services, contracts, or funding to other tribes from the beginning of
the negotiation period until the end of the first year of
implementation of the AFA. An adversely affected tribe/consortium may
raise the issue of limitation or reduction of services, contracts, or
funding during area wide tribal shares meetings before the first year
of implementation, within the 90-day review period before the effective
date of the AFA, and during the first year of implementation of the
AFA. Claims not filed on time are barred.
A claim by either the Department or an adversely affected tribe/
consortium or tribal organization must be a written notification that
specifies the alleged limitation or reduction of services, contracts,
or funding. If a limitation and/or reduction exists, then the BIA must
use shortfall funding, supplemental funding, or other available BIA
resources to prevent the reduction during the existing AFA year. The
BIA may, in a subsequent AFA, adjust the funding to correct a finding
of actual reduction in services, contracts, or funds for that
subsequent year. All adjustments under this subpart must be mutually
agreed to between BIA and the tribe/consortium.

Subpart I--Public Consultation Process

This subpart describes when public consultation is appropriate and
the protocols that should be used in this process. The roles of the
tribe/consortium and the bureau are outlined, including notification
procedures and the commitment to share information concerning inquiries
about AFAs.
Public consultation is used when required by law or when
appropriate under bureau discretion. When the law requires a public
consultation process, the bureau will include the tribe/consortium to
the maximum extent possible. When a public consultation process is a
matter of bureau discretion, the bureau and the tribe/consortium may
develop guidelines for the conduct of public meetings.
When the bureau conducts a public meeting, it must notify the
tribe/consortium and involve the tribe/consortium in as much of the
conduct of the meeting as is practicable and allowed by law. When
someone other than the bureau conducts a meeting to discuss a
particular AFA and the bureau is invited to attend, the bureau will
notify the tribe/consortium of the invitation and encourage the meeting
sponsor to invite the tribe/consortium to participate.
The bureau and the tribe/consortium will exchange information about
other inquiries relating to the AFA under negotiation from other
affected or interested parties.

Subpart J--Waiver of Regulations

This subpart implements section 403(I)(2)(A) of the Tribal Self-
Governance Act of 1994 (25 U.S.C. 458cc(I)(2)(A)). It authorizes the
Secretary to waive all DOI regulations governing programs included in
an AFA, as identified by the tribe/consortium.
Subpart J also provides time lines, explains how a tribe/consortium
applies for a waiver, the basis for granting or denying a waiver
request, the documentation requirements for a decision, and establishes
a process for reconsideration of the Secretary's denial of a waiver
request.
The basis for the Secretary's denial of a waiver request depends on
whether the request is made for a BIA or non-BIA program. For a BIA
program, denial of a requested waiver must be predicated on a
prohibition of federal law. For a non-BIA program, denial of a
requested waiver must be predicated on a prohibition of federal law, or
inconsistency with the express provisions of the AFA. Examples of
waivers prohibited by law are provided in the body of the proposed
regulation.
No consensus was reached with respect to the time limit by which
the Secretary must approve or deny a waiver request. For a brief
discussion on this point, see the discussion of areas of disagreement
elsewhere in this preamble.

Subpart K--Construction

Subpart K applies to all construction, both BIA and non-BIA. It is
designed as a stand-alone Subpart; that is, other subparts do not apply
to construction agreements if they are inconsistent with the provisions
in Subpart K. The Subpart specifies which construction program
activities are subject to Subpart K, such as design, construction
management services, actual construction; and which are not, such as
planning services, operation and maintenance activities, and certain
construction programs that cost less than $100,000. The Subpart
specifies the roles and responsibilities of the

[[Page 7223]]

tribes and the Secretary in construction programs, including
performance, changes, monitoring, inspections, and a special
reassumption provision for construction. It addresses whether inclusion
of a construction program in an AFA creates an agency relationship with
self-governance tribes.
Federal Acquisition Regulations provisions are specifically not
incorporated into these regulations, however, they may be negotiated by
the parties in the AFA. Also, construction AFAs must address applicable
federal laws, program statutes, and regulations. In addition to
requirements for all AFAs referenced in Subpart F, other special
provisions are added for construction programs, including health and
safety standards, brief progress reports, and suspension of work when
appropriate. Building codes appropriate for the project must be used
and the federal agency must notify the tribe when federal standards are
appropriate for any project.

Subpart L--Federal Tort Claims

This subpart explains the applicability of the Federal Tort Claims
Act.

Subpart M--Reassumption

Reassumption is the federally initiated action of reassuming
control of federal programs formerly performed by a tribe. Subpart M
explains the types of reassumption authorized under the Tribal Self-
Governance Act of 1994, including the rights of a consortium member,
the types of circumstances necessitating reassumption, and Secretarial
responsibilities including prior notice requirements and other
procedures.
Subpart M also describes activities to be performed after
reassumption has been completed, such as authorization for ``windup''
costs, tribal obligations regarding the return of federal property to
the Secretary, and the effect of reassumption on other provisions of an
AFA.

Subpart N--Retrocession

Retrocession is the tribally initiated action of returning control
of certain programs to the federal government. Subpart N defines
retrocession, including how tribes may retrocede, the effect of
retrocession on future AFA negotiations, and tribal obligations
regarding the return of federal property to the Secretary after
retrocession.

Subpart O--Trust Evaluation Review

Subpart O establishes a procedural framework for the annual trust
evaluation mandated by the Tribal Self-Governance Act of 1994. The
purpose of the annual trust evaluation is to ensure that trust
functions assumed by tribes/consortia are performed in a manner that
does not place trust assets in imminent jeopardy.
Imminent jeopardy of a physical trust asset or natural resource (or
their intended benefits) exists where there is an immediate threat and
likelihood of significant devaluation, degradation, or loss to such
asset. 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 death, caused by
tribal action or inaction or as otherwise provided in an annual funding
agreement.
Subpart O requires the Secretary's designated representative to
prepare a written report for each AFA under which trust functions are
performed by a tribe. The regulation also authorizes a review of
federal performance of residual and nondelegable trust functions
affecting trust resources.

Subpart P--Reports

This subpart describes the report on self-governance that the
Secretary prepares annually for transmittal to Congress. It includes
the requirements for the annual report that tribes submit to the
Secretary.

Subpart Q--Miscellaneous Provisions

This subpart addresses many facets of self-governance not covered
in the other subparts. Issues covered include the applicability of
various laws and OMB circulars, how funds are handled in various
situations, and the relationship between employees of the tribe/
consortium and employees of the federal government.

Executive Order 12988

The Department has certified to the Office of Management and Budget
(OMB) that these proposed regulations meet the applicable standards
provided in sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 12866

This proposed rule is a significant regulatory action and has been
reviewed by the Office of Management and Budget under Executive Order
12866.

Regulatory Flexibility Act

This rule will not have a significant economic impact on a
substantial number of small entities as the term is defined under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Executive Order 12630

The Department has determined that this rule does not have
significant ``takings'' implications. The rule does not pertain to
``taking'' of private property interests, nor does it impact private
property.

Executive Order 12612

The Department has determined that this rule does not have
significant Federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights, and
responsibilities of states.

NEPA Compliance

The Department has determined that this rule does not constitute a
major Federal action significantly affecting the quality of the human
environment and that no detailed statement is required under the
National Environmental Policy Act of 1969.

Federal Paperwork Reduction Act

In accordance with 44 U.S.C. 3507(d), the OSG has submitted the
information collection and recordkeeping requirements of 25 CFR Part
1000 to the Office of Management and Budget (OMB) for review and
approval.

25 CFR Part 1000

Title: Annual Funding Agreements Under the Tribal Self-Governance
Act Amendments to the Indian Self-Determination and Education Act.
OMB Control Number: Not yet assigned.
Abstract: The Department of the Interior and Indian government
representatives developed a rule to implement section 407 of Pub. L.
103-413, the Tribal Self-Governance Act of 1994. As required by section
407 of the Act, the Secretary, upon request of a majority of the Self-
Governance tribes, initiated procedures under subchapter III of Chapter
5 of title 5, United States Code, to negotiate and promulgate
regulations that are necessary to carry out title IV. This rule will
allow the Department to negotiate annual funding agreements with Self-
Governance tribes for programs, services, functions and activities
conducted by the Department. The Department developed this negotiated
rulemaking with active tribal participation, and it contains the
proposed information collection.
Need for and Use: The information provided by the Tribes will be
used by the Department of the Interior 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,

[[Page 7224]]

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 have no material audit exceptions for the last three years). Other
documentation is required to meet the reporting requirements as called
for in Section 405 of the Act.
Respondents: Tribes and Tribal Consortiums which may be affected by
self-governance activities or request funding for projects or services.
Total Annual Burden: Refer to proposed 25 CFR 1000.3 for a detailed
table of the burden estimates anticipated by this rulemaking.
Comments are invited on:
(a) Whether the proposed collection of information is necessary for
the proper performance of the Department of the Interior, including
whether the information will have practical utility;
(b) The accuracy of the OSG's estimate of the burden of the
proposed collection of information;
(c) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(d) Ways to minimize the burden of collection on the respondents.
Under the Paperwork Reduction Act, the OSG must obtain OMB approval
of all information and recordkeeping requirements. 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. This number will appear in 25 CFR 1000.3
upon approval. To obtain a copy of the OSG's information collection
clearance requests, explanatory information, and related form, contact
the Information Collection Clearance Officer, Office of Self-
Governance, at (202) 219-0240.
By law, the OMB must submit comments to the OSG within 60 days of
publication of this proposed rule, but may respond as soon as 30 days
after publication. Therefore, to ensure consideration by the OMB,
please send comments regarding these burden estimates or any other
aspect of these information collection and recordkeeping requirements
by March 16, 1998, to the Information Collection Clearance Officer,
Office of Self-Governance, Room 2542, 1849 C Street, NW., Washington,
DC 20240, and the Office of Management and Budget, Office of
Information and Regulatory Affairs, Attention: Interior Desk Officer,
725 17th Street, NW., Washington, DC 20503.

Unfunded Mandates Act of 1995

This rule imposes no unfunded mandates on any governmental or
private entity and is in compliance with the provisions of the Unfunded
Mandates Act of 1995.

List of Subjects in 25 CFR Part 1000

Grant programs--Indians, Indians.

For the reasons set out in the preamble, the Department of the
Interior proposes to establish a new part 1000 in chapter VI of title
25 of the Code of Federal Regulations as set forth below.

Dated: February 3, 1998.
Bruce Babbitt,
Secretary of the Interior.

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

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?
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 annual funding
agreement during the calendar year?
1000.30 May a tribe/consortium be selected to negotiate an annual
funding agreement pursuant to section 403(b)(2) without having or
negotiating an annual funding agreement pursuant to section
403(b)(1)?
1000.31 May a tribe/consortium be selected to negotiate an annual
funding agreement pursuant to section 403(c) without negotiating an
annual funding agreement 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?

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 7225]]

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 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 Is there an appeal within DOI of a decision by the Director
not to award a grant under this subpart?
1000.72 Will the 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

1000.78 What is the purpose of this subpart?
1000.79 What is an annual funding agreement (AFA)?

Contents and Scope of Annual Funding Agreements

1000.80 What types of provisions must be included in a BIA AFA?
1000.81 Can additional provisions be included in an AFA?
1000.82 Does a tribe/consortium have the right to include
provisions of Title I of Pub. L. 93-638 in an AFA?
1000.83 Can a tribe/consortium negotiate an AFA with a term that
exceeds one year?

Determining What Programs May Be Included in an AFA

1000.84 What types of programs may be included in an AFA?
1000.85 How does the AFA specify the services provided, functions
performed, and responsibilities assumed by the tribe/consortium and
those retained by the Secretary?
1000.86 Do tribes/consortia need Secretarial approval to redesign
BIA programs that the tribe/consortium administers under an AFA?
1000.87 Can the terms and conditions in an AFA be amended during
the year it is in effect?

Determining AFA Amounts

1000.88 What funds must be transferred to a tribe/consortium under
an AFA?
1000.89 What funds may not be included in an AFA?
1000.90 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?
1000.91 What are BIA residual funds?
1000.92 How is BIA's residual determined?
1000.93 May a tribe/consortium continue to negotiate an AFA pending
an appeal of the residual list?
1000.94 What is a tribal share?
1000.95 How is a tribe/consortium's share of funds to be included
in an AFA determined?
1000.96 Can a tribe/consortium negotiate a tribal share for
programs outside its area/agency?
1000.97 May a tribe/consortium obtain funding that is distributed
on a discretionary or competitive basis?
1000.98 Are all funds identified as tribal shares always paid to
the tribe/consortium under an AFA?
1000.99 How are savings that result from downsizing allocated?
1000.100 Do tribes/consortia need Secretarial approval to
reallocate funds between programs that the tribe/consortium
administers under the AFA?
1000.101 Can funding amounts negotiated in an AFA be adjusted
during the year it is in effect?

Establishing Self-Governance Base Budgets

1000.102 What are self-governance base budgets?
1000.103 Once a tribe/consortium establishes a base budget, are
funding amounts renegotiated each year?
1000.104 Must a tribe/consortium with a base budget or base budget-
eligible program amounts negotiated before the implementation of
this part negotiate new tribal shares and residual amounts?
1000.105 How are self-governance base budgets established?
1000.106 How are self-governance base budgets adjusted?
Subpart F--Non-BIA Annual Self-Governance Compacts and Funding
Agreements

Purpose

1000.110 What is the purpose of this subpart?
1000.111 What is an annual funding agreement for a non-BIA program?

Eligibility

1000.112 What non-BIA programs are eligible for inclusion in an
annual funding agreement?
1000.113 What programs are included under section 403(c)?
1000.114 What does ``special geographic, historical or cultural''
mean?
1000.115 Does the law establish a contracting preference for
programs of special geographic, historical, or cultural
significance?
1000.116 Are there any programs that may not be included in an AFA?
1000.117 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?
1000.118 Will tribes/consortia participate in the Secretary's
determination of what is to be included on the annual list of
available programs?
1000.119 How will the Secretary consult with tribes/consortia in
developing the list of available programs?
1000.120 What else is on the list in addition to eligible programs?
1000.121 May a bureau negotiate with a tribe/consortium for
programs not specifically included on the annual section 405(c)
list?
1000.122 How will a bureau negotiate an annual funding agreement
for a program of special geographic, historical, or cultural
significance to more than one tribe?
1000.123 When will this determination be made?

Funding

1000.124 What funds are to be provided in an AFA?
1000.125 How are indirect cost rates determined?
1000.126 Will the established indirect cost rate always apply to
new AFAs?
1000.127 How does the Secretary's designee determine the amount of
indirect contract support costs?

[[Page 7226]]

1000.128 Is there a predetermined cap or limit on indirect cost
rates or a fixed formula for calculating indirect cost rates?
1000.129 Instead of the appropriate OIG rate, is it possible to
establish a fixed amount or negotiated rate for indirect costs where
funds are limited?

Other Terms and Conditions

1000.130 May the bureaus negotiate terms to be included in an AFA
for non-Indian programs?

Subpart G--Negotiation Process for Annual Funding Agreements

Purpose

1000.150 What is the purpose of this subpart?

Negotiating a Self-Governance Compact

1000.151 What is a self-governance compact?
1000.152 What is included in a self-governance compact?
1000.153 Can a tribe negotiate other terms and conditions not
contained in the model compact?
1000.154 Can a tribe/consortium have an AFA without entering into a
compact?
1000.155 Are provisions included in compacts that were negotiated
before this part is implemented effective after implementation?

Negotiation of Initial Annual Funding Agreements

1000.156 What are the phases of the negotiation process?
1000.157 Who may initiate the information phase?
1000.158 Is it mandatory to go through the information phase before
initiating the negotiation phase?
1000.159 How does a tribe/consortium initiate the information
phase?
1000.160 What is the letter of interest?
1000.161 When should a tribe/consortium submit a letter of
interest?
1000.162 What steps does the bureau take after a letter of interest
is submitted by a tribe/consortium?
1000.165 How does a newly selected tribe/consortium initiate the
negotiation phase?
1000.166 To whom does the newly selected tribe/consortium submit
the requests to negotiate an AFA and what information should it
contain?
1000.167 What is the deadline for a newly selected tribe/consortium
to submit a request to negotiate an AFA?
1000.168 How and when does the bureau respond to a request to
negotiate?
1000.169 What is the process for conducting the negotiation phase?
1000.170 What issues must the bureau and the tribe/consortium
address at negotiation meetings?
1000.171 What happens when the AFA is signed?
1000.172 When does the AFA become effective?
1000.173 What happens if the tribe/consortium and bureau
negotiators fail to reach an agreement?

Negotiation Process for Successor Annual Funding Agreements

1000.174 What is a successor AFA?
1000.175 How does the tribe/consortium initiate the negotiation of
a successor AFA?
1000.176 What is the process for negotiating a successor AFA?

Subpart H--Limitation and/or Reduction of Services, Contracts, and
Funds

1000.180 What is the purpose of this subpart?
1000.181 To whom does this subpart apply?
1000.182 What services, contracts, or funds are protected under
section 406(a)?
1000.183 Who may raise the issue of limitation or reduction of
services, contracts, or funding?
1000.184 When may the BIA raise the issue of limitation or
reduction of services, contracts, or funding?
1000.185 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?
1000.186 What must be included in a finding by the BIA or in a
claim by or an affected tribe/consortium or tribal organization
regarding the issue of a limitation or reduction of services?
1000.187 How will the BIA resolve a claim?
1000.188 How must a limitation or reduction in services, contracts,
or funds be remedied?

Subpart I--Public Consultation Process

1000.190 When does a non-BIA bureau use a public consultation
process related to the negotiation of an AFA?
1000.191 Will the bureau contact the tribe/consortium before
initiating public consultation for a non-BIA AFA under negotiation?
1000.192 What is the role of the tribe/consortium when a bureau
initiates a public meeting?
1000.193 What should the bureau do if it is invited to attend a
meeting with respect to the tribe/consortium proposed AFA?
1000.194 Will the bureau and the tribe/consortium share
information concerning inquiries about the tribes/consortia and the
annual funding agreement?

Subpart J--Waiver of Regulations

1000.200 What regulations apply to self-governance tribes?
1000.201 Can the Secretary grant a waiver of regulations to a
tribe/consortium?
1000.202 How does a tribe/consortium obtain a waiver?
1000.203 When can a tribe/consortium request a waiver of a
regulation?
1000.204 How can a tribe/consortium expedite the review of a
regulation waiver request?
1000.205 Are such meetings or discussions mandatory?
1000.206 On what basis may the Secretary deny a waiver request?
1000.207 What happens if the Secretary denies the waiver request?
1000.208 What are examples of waivers prohibited by law?
1000.209 May a tribe/consortium propose a substitute for a
regulation it wishes to be waived?
1000.210 How is a waiver request approval documented for the
record?
1000.211 How does a tribe/consortium request a reconsideration of
the Secretary's denial of a waiver?
1000.212 Is there a deadline for the agency to respond to a request
for reconsideration?

Subpart K--Construction

1000.220 What construction programs included in an AFA are subject
to this subpart?
1000.221 Is an agency relationship created by this subpart?
1000.222 What provisions relating to a construction program may be
included in an AFA?
1000.223 What provisions must be included in an AFA that contains a
construction program?
1000.224 May a tribe/consortium continue work with construction
funds remaining in an AFA at the end of the funding year?
1000.225 Must an AFA that contains a construction project or
activity incorporate federal construction standards?
1000.226 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?
1000.227 What role does the Indian tribe/consortium have regarding
a construction program included in an AFA?
1000.228 What role does the Secretary have regarding a construction
program in an AFA?
1000.229 How are property and funding returned if there is a
reassumption for substantial failure to carry out an AFA?
1000.230 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?

Subpart L--Federal Tort Claims

1000.240 What does this subpart cover?
1000.241 What principal statutes and regulations apply to FTCA
coverage?
1000.242 Do tribes/consortia need to be aware of areas which the
FTCA does not cover?
1000.243 Is there a deadline for filing FTCA claims?
1000.244 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?
1000.245 Is it necessary for a self-governance AFA to include any
clauses about FTCA coverage?
1000.246 Does the FTCA apply to a self-governance AFA if the FTCA
is not referred to in the AFA?

[[Page 7227]]

1000.247 To what extent must the tribe/consortium cooperate with
the federal government in connection with tort claims arising out of
the tribe/consortium's performance?
1000.248 Does this coverage extend to contractors of self-
governance AFAs?
1000.249 Are federal employees assigned to a self-governance tribe/
consortium under the Intergovernmental Personnel Act covered by the
FTCA?
1000.250 Is the FTCA the exclusive remedy for a tort claim arising
of the performance of a self-governance AFA?
1000.251 To what claims against self-governance tribes/consortia
does the FTCA apply?
1000.252 Does the FTCA cover employees of self-governance tribe/
consortia?
1000.253 How are tort claims filed for the Department of the
Interior?
1000.254 What should a self-governance tribe/consortium or tribe's/
consortium's employee do on receiving a tort claim?
1000.255 If the tribe/consortium or its employee receives a summons
and/or complaint alleging a tort covered by the FTCA, what should a
tribe/consortium or employee do?

Subpart M--Reassumption

1000.259 What is the purpose of this subpart?
1000.260 When may the Secretary reassume a federal program
operated by a tribe/consortium under an annual funding agreement?
1000.261 What is ``imminent jeopardy'' to a trust asset?
1000.262 What is imminent jeopardy to natural resources?
1000.263 What is imminent jeopardy to public health and safety?
1000.264 In an imminent jeopardy situation, what is the Secretary
required to do?
1000.265 Must the Secretary always reassume a program, upon a
finding of imminent jeopardy?
1000.266 What happens if the Secretary's designated representative
determines that the tribe/consortium cannot mitigate the conditions
within 60 days?
1000.267 What will the notice of reassumption include?
1000.268 How much time will a tribe/consortium have to respond to a
notice of imminent jeopardy?
1000.269 What information must the tribe/consortium's response
contain?
1000.270 How will the Secretary reply to the tribe/consortium's
response?
1000.271 What happens if the Secretary accepts the tribe/
consortium's proposed measures?
1000.272 What happens if the Secretary does not accept the tribe/
consortium's proposed measures?
1000.273 What must a tribe/consortium do when a program is
reassumed?
1000.274 When must the tribe/consortium return funds to the
Department?
1000.275 May the tribe/consortium be reimbursed for actual and
reasonable ``wind up costs'' incurred after the effective date of
recession?
1000.276 Is a tribe/consortium's general right to negotiate an
annual funding agreement adversely affected by a reassumption
action?
1000.277 When will the Secretary return management of a reassumed
program?

Subpart N--Retrocession

1000.289 What is the purpose of this subpart?
1000.290 Is a decision by a tribe/consortium not to include a
program in a successor agreement considered a retrocession?
1000.291 Who may retrocede a program in an annual funding
agreement?
1000.292 How does a tribe/consortium retrocede a program?
1000.293 When will the retrocession become effective?
1000.294 What effect will retrocession have on the tribe/
consortium's existing and future annual funding agreements?
1000.295 What obligation does the tribe/consortium have to return
funds that were used in the operation of the retroceded program?
1000.296 What obligation does the tribe/consortium have to return
property that was used in the operation of the retroceded program?
1000.297 What happens to a tribe/consortium's mature contractor
status if it retrocedes a program that is also available for self-
determination contracting?
1000.298 How does retrocession effect a bureau's operation of the
retroceded program?

Subpart O--Trust Evaluation Review

1000.310 What is the purpose of this subpart?
1000.311 Does the Tribal Self-Governance Act of 1994 alter the
trust responsibility of the United States to Indian tribes and
individuals under self-governance?
1000.312 What are ``trust resources'' for the purposes of the trust
evaluation process?
1000.313 What are ``trust functions'' for the purposes of the trust
evaluation process?

Annual Trust Evaluations

1000.314 What is a trust evaluation?
1000.315 How are trust evaluations conducted?
1000.316 May the trust evaluation process be used for additional
reviews?
1000.317 Can an initial review of the status of the trust asset be
conducted?
1000.318 What are the responsibilities of the Secretary's
designated representative(s) after the annual trust evaluation?
1000.319 Is the trust evaluation standard or process different when
the trust asset is held in trust for an individual Indian or Indian
allottee?
1000.320 Will the annual review include a review of the Secretary's
residual trust functions?
1000.321 What are the consequences of a finding of imminent
jeopardy in the annual trust evaluation?
1000.322 What if the trust evaluation reveals problems which do not
rise to the level of imminent jeopardy?
1000.323 Who is responsible for corrective action?
1000.324 What are the requirements of the review team report?
1000.325 Can the Department conduct more than one trust evaluation
per tribe per year?
1000.326 Will the Department evaluate a tribe/consortium's
performance of non-trust related programs?

Subpart P--Reports

1000.339 What is the purpose of this subpart?
1000.340 How is information about self-governance developed and
reported?
1000.341 What will the tribe/consortium's annual report on self-
governance address?

Subpart Q--Miscellaneous Provisions

1000.352 How can a tribe/consortium hire a federal employee to
assist with the implementation of an annual funding agreement?
1000.353 Can a tribe/consortium employee be detailed to a federal
service position?
1000.354 How does the Freedom of Information Act apply?
1000.355 How does the Privacy Act apply?
1000.356 How will payments be made to self-governance tribes/tribal
consortia?
1000.357 What audit requirements must a self-governance tribe/
consortium follow?
1000.358 Do OMB circulars and revisions apply to self-governance
funding agreements?
1000.359 Does a tribe/consortium have additional ongoing
requirements to maintain minimum standards for tribe/consortium
management systems?
1000.360 Can a tribe/consortium retain savings from programs?
1000.361 Can a tribe/consortium carry over funds not spent during
the term of the AFA?
1000.362 After a non-BIA annual funding agreement has been executed
and the funds transferred to a tribe/consortium, can a bureau
request the return of funds?
1000.363 How can a person or group appeal a decision or contest an
action related to a program operated by a tribe/consortium under an
annual funding agreement?
1000.364 Must self-governance tribes/consortia comply with the
Secretarial approval requirements of 25 U.S.C. 81 and 476 regarding
professional and attorney contracts?
1000.365 Can funds provided under a self-governance annual funding
agreement be treated as non-federal funds for the purpose of meeting
matching requirements under any federal law?

[[Page 7228]]

1000.366 Will Indian preference in employment, contracting, and
subcontracting apply to services, activities, programs and functions
performed under a self-governance annual funding agreement?
1000.367 Do the wage and labor standards in the Davis-Bacon Act of
March 3, 1931 (40 U.S.C., Sec. 276a-276a-f) (46 Stat. 1494), as
amended and with respect to construction, alteration and repair, the
Act of March 3, 1921, apply to tribes and tribal consortia?

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

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 non-BIA programs 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, those programs,
functions, services, and activities which are of a 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 of 1994, as amended, which
is Title IV of the Indian Self-Determination and Education Assistance
Act of 1975 (Pub. L. 93-638), as amended, 25 U.S.C. 450 et seq. The
Tribal Self-Governance Act of 1994 was originally enacted as Title II
of Pub. L. 103-413, 25 U.S.C. 458aa et seq.
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 this part.
BIA means the Bureau of Indian Affairs of the Department of the
Interior.
BIA Program means any program, service, function, or activity, or
portions 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 which affirms the government-to-
government relationship between a self-governance tribe and the United
States. The compact differs from an annual funding agreement 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. A consortium that has
negotiated compacts and annual funding agreements under the Tribal
Self-Governance Demonstration Project must be treated in the same
manner as a consortium under the permanent Self-Governance Program.
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 Alaskan Native Village, or regional or village corporation as
defined in or established pursuant to the Alaskan Native Claims
Settlement Act, which is recognized as eligible for special programs
and services provided by the United States to Indians because of their
status as Indians.
Indirect cost rate 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
benefiting more than one program which are not readily assignable to
individual programs.
Non-BIA bureau means any bureau or office within the Department
other than the Bureau of Indian Affairs.
Non-BIA program means those programs administered by bureaus or
offices other than the Bureau of Indian Affairs within the Department
of the Interior.
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 thereof, 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. 1000.260.
Retained tribal share means those funds which were available as a
tribal share but under the annual funding agreement (AFA) were left
with the 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 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/
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
from a particular program at the BIA area, agency and central office
levels.

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) Pub. L.
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, 25 U.S.C. 458aa et seq.
(108 Stat. 4250, October 25, 1994).
(b) Information Collection. (1) The information provided by the
Tribes will be used by the Department of the Interior 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

[[Page 7229]]

indicating that the tribe wants to plan for Self-Governance and have 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.
(2) The Office of Self-Governance has estimated the public
reporting and recordkeeping burden for this part, including time spent
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. The following table depicts the burden for
each section of 25 CFR part 1000. Send comments regarding this burden
estimate or any other aspect of these information collection and
recordkeeping requirements, including suggestions for reducing the
burden, to the Information Collection Clearance Officer, Office of
Self-Governance, Room 2542, 1849 C Street, NW, Washington, DC 20240;
and the Office of Management and Budget, Office of Information and
Regulatory Affairs, Attention: Interior Desk Officer, 725 17th Street,
NW, Washington, DC 20503.

----------------------------------------------------------------------------------------------------------------
Number of Frequency of Total annual Burden hours Annual burden
25 CFR section respondents response responses per response hours
----------------------------------------------------------------------------------------------------------------
1000.17......................... 10 1 10 3 30
1000.18......................... 10 1 10 0.25 2.50
1000.19-21...................... 10 1 10 400 4,000
1000.32......................... 3 1 3 3 9
1000.47......................... 10 1 10 0.50 5
1000.50(a)...................... 10 1 10 3 30
1000.50(b)...................... 10 1 10 0.25 2.50
1000.50(c)...................... 10 1 10 40 400
1000.66......................... 15 1 15 40 600
1000.159, .160.................. 40 1 40 2 80
1000.165, .166.................. 12 1 12 3 36
1000.175........................ 1 1 1 3 3
1000.202........................ 5 1 5 10 50
1000.223........................ 5 4 20 3 60
1000.227........................ 5 1 5 3 15
1000.292........................ 1 1 1 3 3
1000.341........................ 85 1 85 64 5,440
-------------------------------------------------------------------------------
Totals.................... 85 .............. 257 3 10,766
----------------------------------------------------------------------------------------------------------------

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
statutes, and the course of dealings of the United States with Indian
tribes;
(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 decisionmaking 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 decisionmaking 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 Indian 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.

[[Page 7230]]

(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 budgetary matters applicable to programs subject
to the Act, and which 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 of the Interior to ensure
that the letter, spirit, and goals of the Tribal Self-Governance Act
are fully and successfully implemented.

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 which 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 an Indian tribe or consortium that meets the
eligibility criteria in Sec. 1000.15 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 nonsignatory tribe is an Indian tribe that either:
(a) Does not meet the eligibility criteria in Sec. 1000.15 and, by
resolution of its governing body, authorizes a consortium to
participate in self-governance on its behalf.
(1) The tribe may not sign the compact and annual funding
agreement. A representative of the consortium must sign both documents
on behalf of the tribe.
(2) The tribe may only become a ``signatory tribe'' if it
independently meets the eligibility criteria in Sec. 1000.15; or
(b) Meets the eligibility criteria in Sec. 1000.15 but chooses to
be a member of a consortium and have a representative of the consortium
sign the compact and AFA on its behalf.

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?

The tribe/consortium must submit to OSG documentation that shows
all of the following.
(a) Successful completion of a planning phase and a planning
report. The requirements for both of these are described in
Secs. 1000.19 and 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 as
prescribed by the Single Audit Act of 1984, 31 U.S.C. Section 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
Secs. 1000.13-1000.20. If a consortium's planning activities and report
specifically consider self-governance activities for a member tribe,
those planning activities 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

[[Page 7231]]

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 of this part. The planning phase may be
completed without a planning grant.

Sec. 1000.20 What is contained 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 the BIA and non-BIA programs that the tribe/consortium
may wish to subsequently negotiate for inclusion in a compact and AFA;
(2) Identify the tribe/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 implementating 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 may wish to describe the
process that it will use to debate and decide the setting of priorities
for the funds it will receive from its annual funding agreement.
(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.

Sec. 1000.21 When does a tribe/consortium have a ``material audit
exception''?

(a) A tribe/consortium has a material audit exception if any of the
audits that it submitted under Sec. 1000.17(c):
(1) Identifies a material weakness, or a finding of substantial
financial mismanagement or misapplication of funds, that has not been
resolved; or
(2) Has any questioned costs subsequently disallowed by a
contracting officer which total 5 percent or more of the total
expenditures identified in the audit.
(b) If the audits submitted under Sec. 1000.17(c) identify material
weaknesses or contain questioned costs, 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 2548-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?

(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 annual funding agreement
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 Sec. 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 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 annual funding
agreement 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.

[[Page 7232]]

Sec. 1000.30 May a tribe/consortium be selected to negotiate an annual
funding agreement pursuant to section 403(b)(2) without having or
negotiating an annual funding agreement pursuant to section 403(b)(1)?

Yes. A tribe/consortium may be selected to negotiate an AFA
pursuant to section 403(b) without having or negotiating an AFA
pursuant to section 403(b)(1).

Sec. 1000.31 May a tribe/consortium be selected to negotiate an annual
funding agreement pursuant to section 403(c) without negotiating an
annual funding agreement 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 pursuant to section
403(a) and/or section 403(b). A tribe may be selected to negotiate an
annual funding agreement pursuant to section 403(c) at the same time
that it negotiates an AFA pursuant to 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?

The consortium's AFA must be reduced by the portion of funds
attributable to the withdrawing tribe, 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 consortium, tribe,
OSG, and bureau must negotiate an appropriate amount on a case-by-case
basis.
(b) If a tribe withdraws in the middle of a 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 programs, within 10 days 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 . . .
------------------------------------------------------------------------
A BIA program............................. The BIA Area director, the
Deputy Commissioner of
Indian Affairs, the
withdrawing tribe, and the
consortium.
A non-BIA program......................... The non-BIA bureau official,
the withdrawing tribe, and
the consortium.
------------------------------------------------------------------------

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

Subpart C--Section 402(d) Planning and Negotiation Grants Purpose
and Types of Grants

Purpose and Types of Grants

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 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 F of
this part.

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

[[Page 7233]]

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 which 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 identified 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.

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 which 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/consortium's plans for conducting legal and budgetary
research;
(2) The tribe/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 Secs. 1000.50 and
1000.51.
(b) Financial need. The Director will rank applications according
to the percent of tribal resources that comprise total resources
covered by the latest A-128 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 Secs. 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.

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 the OSG to determine if the 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 which may be available from
that bureau in accordance with Sec. 1000.160(g).

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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, which 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?

(a) Written notification by the governing body or its authorized
representative of the tribe/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 the 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. The 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 tribe/consortium in the drafting of
its planning grant application.

Sec. 1000.69 How can a tribe/consortium obtain comments or selection
documents 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 Is there an appeal within DOI of a decision by the
Director not to award a grant under this subpart?

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

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

Yes. The 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 Secs. 1000.159-162.

Subpart E--Annual Funding Agreements for Bureau of Indian Affairs
Programs

Sec. 1000.78 What is the purpose of this subpart?

This subpart describes the components of annual funding agreements
for Bureau of Indian Affairs (BIA) programs.

Sec. 1000.79 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 the Bureau of Indian
Affairs.

Contents and Scope of Annual Funding Agreements

Sec. 1000.80 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. 1000.91.)
(b) Transferred or to be transferred to the tribe/consortium. (See
Sec. Sec. 1000.94-1000.97.)
(c) Retained by the BIA to carry out functions that the tribe/
consortium could have assumed but elected to leave with BIA. (See
Sec. 1000.98.)

Sec. 1000.81 Can additional provisions be included in an AFA?

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

Sec. 1000.82 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. 1000.83 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 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. 1000.84 What types of programs may be included in an AFA?

A tribe/consortium may include in its AFA programs administered by
BIA,

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without regard to the BIA agency or office which administers the
program, including any program identified in section 403(b)(1) of the
Act.

Sec. 1000.85 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. 1000.86 Do tribes/consortia need Secretarial approval to redesign
BIA programs that the tribe/consortium administers under an AFA?

No.
(a) 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. In such cases, the Secretary must approve, in accordance
with subpart J of this part, the waiver before redesign takes place.
(b) This section does not authorize redesign of programs where
other prohibitions exist. Redesign shall not result in the tribe/
consortium being entitled to receive more or less funding for the
program from the BIA.
(c) Redesign of construction project(s) included in an AFA must be
done in accordance with subpart K of this part.

Sec. 1000.87 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.

Determining AFA Amounts

Sec. 1000.88 What funds must be transferred to a tribe/consortium
under an AFA?

(a) At the option of the tribe/consortium, the Secretary must
provide funds to the tribe/consortium through an AFA for programs,
including:
(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 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 the
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/consortium's Pub. L. 93-638 contract amounts;
(2) Negotiated amounts of Agency, Area, 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. 1000.89 What funds may not be included in an AFA?

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

Sec. 1000.90 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 which are required by law or which are required by the
agency to which the appropriation is made.

Sec. 1000.91 What are BIA residual funds?

BIA residual funds are the funds necessary to carry out the
inherently federal functions that must be performed by federal
officials if all tribes assume responsibilities for all BIA programs.

Sec. 1000.92 How is BIA's residual determined?

(a) Generally, residual levels will be determined through a process
that is consistent with the overall process used by the BIA. For
purposes of negotiation, by March 1 or within 30 days following release
of the President's budget, whichever is later, the Department must
publish a notice in the Federal Register notifying tribes/consortia of
the availability of a list which identifies:
(1) Those functions it believes are residual, in accordance with
the definition in Sec. 1000.91;
(2) The legal authority for its determination;
(3) The estimated funding level; and
(4) The organizational level within the BIA where the programs are
being performed.
(b) There must be functional consistency throughout BIA in the
determination of residuals. The determination must be based upon the
functions actually being performed by BIA at the respective office.
(c) The list of residual functions may be amended annually if
programs are added or deleted or if statutory or final judicial
determinations mandate.
(d) If the BIA and a participating tribe/consortium disagree over
the content of the list of residual functions or amounts, a
participating tribe/consortium may request the Deputy Commissioner-
Indian Affairs to reconsider residual levels for particular programs.
(1) The Deputy Commissioner must make a written determination on
the request within 30 days of receiving it.
(2) The tribe/consortium may appeal the Deputy Commissioner's
determination to the Assistant Secretary--Indian Affairs.
(3) The decision by the Assistant Secretary--Indian Affairs is
final for the Department.

Sec. 1000.93 May a tribe/consortium continue to negotiate an AFA
pending an appeal of the residual list?

Yes. Pending appeal of an item on the annual list of residual
activities, any tribe/consortium may continue to negotiate an AFA using
the Assistant Secretary's list of residual activities. This list will
be subject to later adjustment based on the final determination of a
tribe/consortium's appeal.

Sec. 1000.94 What is a tribal share?

A tribal share is the amount determined for that tribe/consortium
for a particular program at the BIA area, agency, and central office
levels.

Sec. 1000.95 How is a tribe/consortium's share of funds to be included
in an AFA determined?

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/
consortium's amount is determined by first identifying the residual
funds to be retained by the BIA to perform its inherently federal
functions and second, by applying the distribution formula to

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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 area 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. 1000.96 Can a tribe/consortium negotiate a tribal share for
programs outside its area/agency?

Yes. Where BIA services for a particular tribe/consortium are
provided from a location outside its immediate agency or area, the
tribe may negotiate its share from the BIA location where the service
is actually provided.

Sec. 1000.97 May a tribe/consortium obtain funding that is distributed
on a discretionary or competitive basis?

Yes. Unless otherwise provided for in this part, funds provided for
Indian services/programs which have not been mandated by Congress to be
distributed to a competitive/discretionary basis may be distributed by
a tribe/consortium under a formula-driven method. In order to receive
such funds, a tribe/consortium must be eligible and qualify. A tribe/
consortium that receives such funds under a formula-driven methodology
would no longer be eligible to compete for these funds.

Sec. 1000.98 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, in whole or in part, with the BIA for certain programs. This is
referred to as a ``retained tribal share.'' (See Sec. 1000.80.)

Sec. 1000.99 How are savings that result from downsizing allocated?

Funds that are saved as a result of downsizing in the BIA are
allocated to tribes/consortia in the same manner as tribal shares as
provided for in Sec. 1000.95.

Sec. 1000.100 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.

Sec. 1000.101 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 the 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 between areas.
(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. 1000.102 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 which 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/consortium's Pub. L. 93-638 contract amounts;
(2) Negotiated agency, area, and central office amounts;
(3) Other recurring funding;
(4) Special projects, if applicable;
(5) Programmatic shortfall;
(6) Tribal priority allocation increases and decreases (including
contract support funding);
(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.

Sec. 1000.103 Once a tribe/consortium establishes a base budget, are
funding amounts renegotiated each year?

No. Unless the tribe/consortium desires to renegotiate these
amounts. If the tribe/consortium renegotiates funding levels, 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. Self-governance tribes/consortia will be eligible for funding
amounts of new programs or available programs not previously included
in the AFA on the same basis as other tribes.

Sec. 1000.104 Must a tribe/consortium with a base budget or base
budget-eligible program amounts negotiated before the implementation of
this part negotiate new tribal shares and residual amounts?

No.
(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
negotiate all funding included in the AFA utilizing 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. 1000.105 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 the BIA's
budget justification for the following year, subject to Congressional
appropriation.

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Sec. 1000.106 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 the 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 between areas.
(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 such 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. 1000.110 What is the purpose of this subpart?

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

Sec. 1000.111 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
description of that portion or portions of a bureau program that are to
be performed by the tribe/consortium and associated funding, terms, and
conditions under which the tribe/consortium will assume a program, or
portion thereof.

Eligibility

Sec. 1000.112 What non-BIA programs are eligible for inclusion in an
annual funding agreement?

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

Sec. 1000.113 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. 1000.114 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 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 and 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 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. 1000.115 Does the law establish 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. 1000.116 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. 1000.117.

Sec. 1000.117 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.

Sec. 1000.118 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. 1000.119 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 indicate all of the
Secretary's proposed additions and revisions for the coming year with
an explanation.
(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
consideration by the Secretary.
(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. 1000.120 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. 1000.119.

Sec. 1000.121 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

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section 403(c) programs whether or not they are on the list.

Sec. 1000.122 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. 1000.123 When will this determination be made?

It will occur during the pre-negotiation process, subject to the
timeframes in Secs. 1000.161 and 1000.162.

Funding

Sec. 1000.124 What funds are to be provided in an AFA?

The amount of funding to be included in the AFA is determined 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:
(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 that does
not result in the tribe/consortium being paid twice for the same work
when the Office of the Inspector General (OIG) 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. 1000.125 How are indirect cost rates determined?

The Department's Inspector General or other cognizant inspector
general and the tribe/consortium negotiate indirect cost rates based on
the provisions of OMB Circular A-87 or other applicable Office of
Management and Budget cost circular and the provisions of Title I of
Pub. L. 93-638. These rates are used generally by all federal agencies
for contracts and grants with the tribe/consortium, including self-
governance agreements. See Sec. 1000.129.

Sec. 1000.126 Will the established indirect cost rate always apply to
new AFAs?

No.
(a) A tribe/consortium's existing indirect cost rate should be
reviewed and renegotiated with the inspector general or other cognizant
agency's inspector general 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) If the previously negotiated rate would result in an
underrecovery 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
appropriate inspector general.

Sec. 1000.127 How does the Secretary's designee determine the amount
of indirect contract support costs?

The Secretary's designee 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. 1000.128 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's
designee should refer to the appropriate OIG's rates for individual
tribes, which 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. 1000.129 Instead of the appropriate OIG rate, is it possible to
establish a fixed amount or 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. 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. 1000.130 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.

Subpart G--Negotiation Process for Annual Funding Agreements

Purpose

Sec. 1000.150 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, Secs. 1000.156-
1000.170.
(b) For a participating tribe/consortium negotiating a successor
AFA with any bureau, Secs. 1000.174-1000.176.

Negotiating a Self-Governance Compact

Sec. 1000.151 What is a self-governance compact?

A self-governance compact is an executed document which affirms the
government-to-government relationship

[[Page 7239]]

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 to a single bureau.

Sec. 1000.152 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. 1000.153 Can a tribe negotiate other terms and conditions not
contained in the model compact?

Yes. The Secretary and a self-governance tribe/consortium may
negotiate additional terms relating to the government-to-government
relationship between the tribe(s) and the United States. For BIA
programs, a tribe/consortium may include any term that may be included
in a contract and funding agreement under Title I in the model compact
contained in appendix A.

Sec. 1000.154 Can a tribe/consortium have an AFA without entering into
a compact?

Yes, at the tribe's/consortium's option.

Sec. 1000.155 Are provisions included in compacts that were negotiated
before this part is implemented effective after implementation?

Yes.
(a) All provisions in compacts that were negotiated with the BIA
prior to this part being finally promulgated by the Department shall
remain in effect for BIA programs only after promulgation of this part,
provided that each compact contains:
(1) Provisions that are authorized by the Tribal Self-Governance
Act of 1994; and
(2) Are in compliance with other applicable federal laws; and
(3) Are consistent with this part.
(b) The BIA will notify the tribe/consortium with a previously
negotiated compact whenever it asserts that a provision in such compact
is not in accordance with the foregoing conditions and upon such
notification the parties shall renegotiate the provision within 60
days.
(c) If renegotiation is not successful within 60 days of the notice
being provided, the BIA's determination is final for the bureau and
enforceability of the provisions shall be subject to the appeals
process of this part. Pending a final decision through the appeals
process, BIA's determination shall be stayed.

Negotiation of Initial Annual Funding Agreements

Sec. 1000.156 What are the phases of the negotiation process?

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

Sec. 1000.157 Who may initiate the information phase?

Any tribe/consortium which has been admitted to the program or to
the applicant pool may initiate the information phase.

Sec. 1000.158 Is it mandatory to go through the information phase
before initiating the negotiation phase?

No. Tribes may go directly to the negotiation phase.

Sec. 1000.159 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:
(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. 1000.160 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/
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/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 or materials that may be required for the
tribe/consortium in the negotiation process.

Sec. 1000.161 When should a tribe/consortium submit a letter of
interest?

A letter of interest may be submitted at any time. 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. 1000.162 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/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);
(2) Notifying any other bureau requiring notification and
participation under this part.
(b) Within 30 calendar days of receipt of the tribe/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 consistent with the bureau's
budgetary process;

[[Page 7240]]

(2) A written explanation of why the information is not available
or not being provided to the tribe/consortium's contact and the date by
which other available information will be provided; or
(3) If applicable, a written explanation why the program is
unavailable for negotiation.
(c) Information to be made available to the tribe/consortium's
contact, subject to the conditions of paragraph (b) of this section,
includes:
(1) Information regarding program, budget, staffing, and locations
of the 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 with
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 request in
writing that the relevant bureau head make a final decision for the
bureau and/or make an appropriate filing under the Freedom of
Information Act.

Sec. 1000.165 How does a newly selected tribe/consortium initiate the
negotiation phase?

An authorized tribal/consortium official submits a written request
to negotiate an AFA under the Act.

Sec. 1000.166 To whom does the newly selected tribe/consortium submit
the request to negotiate an AFA and what information should it contain?

(a) For BIA programs, the tribe/consortium should submit the
request to negotiate to the Director, OSG. The request should identify
the lead negotiator(s) for the tribe/consortium.
(b) For non-BIA bureaus, the tribe/consortium should submit the
request to negotiate to the bureau representative designated to respond
to the tribe/consortium's request for information. The request should
identify the lead negotiator(s) for the tribe/consortium and, to the
extent possible, the specific program(s) that the tribe/consortium
seeks to negotiate.

Sec. 1000.167 What is the deadline for a newly selected tribe/
consortium to submit a request to negotiate an AFA?

(a) For BIA programs, by April 1 or May 1, respectively, for fiscal
year or calendar year tribes/consortia.
(b) For non-BIA programs, by May 1. The request may be submitted
later than this date when the bureau and the tribe/consortium agree
that administration for a partial year funding agreement is feasible.

Sec. 1000.168 How and when does the bureau respond to a request to
negotiate?

Within 15 days of receiving a tribe/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.
(a) 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.
(b) 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. Within 10 days
after the meeting:
(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.

Sec. 1000.169 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. 1000.170 What issues must the bureau and the tribe/consortium
address at negotiation meetings?

The negotiation meetings referred to in Sec. 1000.169 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. 1000.171 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. 1000.172 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. 1000.171(b).

Sec. 1000.173 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

[[Page 7241]]

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. 1000.174 What is a successor AFA?

A successor AFA is a funding agreement negotiated after a tribe/
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. 1000.175 How does the tribe/consortium initiate the negotiation
of a successor AFA?

Although a written request is desirable to document the precise
request 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. 1000.176 What is the process for negotiating a successor AFA?

The tribe/consortium and the bureau use the procedures in
Secs. 1000.169-1000.170.

Subpart H--Limitation and/or Reduction of BIA Services, Contracts,
and Funds

Sec. 1000.180 What is the purpose of this subpart?

This subpart prescribes the process which 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 Indian 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 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. 1000.181 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. 1000.182 What services, contracts, or funds are protected under
section 406(a)?

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

Sec. 1000.183 Who may raise the issue of limitation or reduction of
services, contracts, or funding?

The 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. 1000.184 When must the 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, the BIA may raise the issue
of limitation or reduction of services, contracts, or funding. If the
BIA and a participating tribe/consortium disagree over the content of
the list of residual functions or amounts, a participating tribe/
consortium may ask the Deputy Commissioner--Indian Affairs to
reconsider residual levels for particular programs. [See Sec. 1000.92
(d)(1)-(3)]
(b) After the AFA is signed, the BIA must raise the issue of any
undetermined funding amounts within 30 days after the final funding
level is determined. The BIA may not raise this issue after this period
has elapsed.

Sec. 1000.185 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) Area-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 the
negotiating tribe/consortium. Claims may only be filed within the
periods specified in paragraph (a) of this section.

Sec. 1000.186 What must be included in a finding by the BIA or in a
claim by or an affected tribe/consortium or tribal organization
regarding the issue of a limitation or reduction of services?

Written explanation identifying the alleged limitation or reduction
of services, contracts, or funding for which it is eligible.

Sec. 1000.187 How will the BIA resolve a claim?

All findings and claims timely made in accordance with
Secs. 1000.184-1000.185 will be resolved in accordance with 25 CFR part
2.

Sec. 1000.188 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, the BIA must use shortfall funding,
supplemental funding, or other available BIA resources; and
(2) In a subsequent AFA year, the 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 the BIA and the participating tribe/consortium.

Subpart I--Public Consultation Process

Sec. 1000.190 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.

Sec. 1000.191 Will the bureau contact the tribe/consortium before
initiating public consultation for a non-BIA AFA under negotiation?

Yes. The bureau and the tribe/consortium will discuss the
consultation process to be used.
(a) When the public consultation process 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 the public consultation process is a matter of bureau
discretion at tribal request, the tribe/consortium

[[Page 7242]]

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. 1000.192 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 ten days in advance, at the earliest practical
time.
(b) At the time of notifying the tribe/consortium, the bureau will
invite the tribe/consortium to participate in and, when not prohibited
by law, to co-sponsor or co-facilitate the meeting.
(c) When possible, the bureau and 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 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 enhance the consultation process, as mutually agreed.

Sec. 1000.193 What should the bureau do if it is invited to attend a
meeting with respect to the tribe/consortium 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 will
notify the tribe/consortium at the earliest practical time, and should
encourage the meeting sponsor to invite the tribe/consortium to
participate.

Sec. 1000.194 Will the bureau and the tribe/consortium share
information concerning inquiries about the tribes/consortia and the
annual funding agreement?

Yes. The bureau and tribe/consortium will exchange information
about other inquiries relating to the AFA under negotiation from
affected or interested parties.

Subpart J--Waiver of Regulations

Sec. 1000.200 What regulations apply to self-governance tribes?

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

Sec. 1000.201 Can the Secretary grant a waiver of regulations to a
tribe/consortium?

Yes. A tribe/consortium may request the Secretary to grant a waiver
of all or any part of the Department of the Interior regulation(s)
applicable to a program, in whole or in part, operated by a tribe/
consortium under an AFA.

Sec. 1000.202 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. 1000.203 When can a tribe/consortium request a waiver of a
regulation?

A tribe/consortium may request waiver of a regulation;
(a) As part of the negotiation process; and
(b) After an AFA has been executed.

Sec. 1000.204 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;
(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. 1000.205 Are such meetings or discussions mandatory?

No.

Sec. 1000.206 On what basis may the Secretary deny a waiver request?

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

Sec. 1000.207 What happens if the Secretary denies the 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) That the tribe/consortium may request reconsideration of the
denial.

Sec. 1000.208 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
Indian tribes, individual Indians or Indians with trust allotments
(section 406(b)); or
(g) When it would violate federal case law.

Sec. 1000.209 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 officials of the relevant
bureau must negotiate to develop a suggested substitution.

[[Page 7243]]

Sec. 1000.210 How is a waiver request 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.

Sec. 1000.211 How does a tribe/consortium request a 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. 1000.212 Is there a deadline for the agency to respond to a
request for reconsideration?

Yes. 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. 1000.220 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;
(2) Housing Improvement Program or road maintenance program
activities of the 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. 1000.226 of this subpart.

Sec. 1000.221 Is an agency relationship created by this subpart?

No, except as provided by federal law, by the provisions of an AFA
or by federal actions taken pursuant to this subpart which constitutes
an agency relationship.

Sec. 1000.222 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. 1000.223 What provisions must be included in an AFA that contains
a construction program?

As part of an AFA which contains a construction program, the
following requirements must be addressed:
(a) The manner in which 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) Applicable federal laws, program statutes, and regulations;
(c) 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, such 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.
(e) The Secretary may require a tribe/consortium to suspend all or
part of the work under a construction portion of an AFA for up to 30
days for reasons such as differing site conditions that adversely
affect health and safety or the discovery of work that fails to
substantially carry out the terms of the AFA without good cause.
Reasons for suspension other than specified in this paragraph must be
specifically negotiated in the AFA.
(1) Unless otherwise required by federal law, before suspending
work the Secretary must provide a 5-working-day written notice and an
opportunity for the Indian tribe/consortium to correct the problem.
(2) The tribe/consortium must be compensated for reasonable costs
due to any suspension of work that occurred through no fault of the
tribe/consortium. Project-specific funds available in the AFA must be
used for this purpose.

Sec. 1000.224 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. 1000.225 Must an AFA that contains a construction project or
activity incorporate 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. 1000.226 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 which are
required for such a project. The project must be completed in
accordance with the terms and conditions set forth in the AFA.

Sec. 1000.227 What role does the Indian tribe/consortium have
regarding 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

[[Page 7244]]

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. 1000.228 What role does the Secretary have regarding 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. 1000.223, 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;
(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. 1000.229 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. 1000.230 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 this part, a finding of substantial
failure to carry out the terms of the AFA without good cause must be
processed pursuant to the suspension of work provision of
Sec. 1000.223(e).
(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 Contracts
Dispute Act.

Subpart L--Federal Tort Claims

Sec. 1000.240 What does this subpart cover?

This subpart explains the applicability of the Federal Tort Claims
Act (FTCA). This subpart covers:
(a) Claims arising out of the performance of functions under self-
governance AFAs; and
(b) Procedures for filing claims under the FTCA.

Sec. 1000.241 What principal statutes and regulations apply to FTCA
coverage?

The Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671-2680)
and related Department of Justice regulations at 28 CFR 14.

Sec. 1000.242 Do tribes/consortia need to be aware of areas which the
FTCA does not cover?

Yes. There may be claims against self-governance tribes/consortia
which are not covered by the FTCA, claims which may not be pursued
under the FTCA, and remedies that are excluded by the FTCA. This
section contains general guidance on these matters but is not intended
as a definitive description. Coverage is subject to review by the
Department of Justice and the courts on a case-by-case basis.
(a) Claims expressly barred by the FTCA and which therefore may not
be made against the United States or an Indian tribe/consortium. Any
claim 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) Claims which may not be pursued under the FTCA.
(1) Claims against contractors arising out of the performance of
contracts with self-governance tribes/consortia;
(2) Claims for on-the-job injuries that are covered by worker's
compensation;
(3) Claims for breach of contract rather than tort claims;
(4) Claims resulting from activities performed by an employee which
are outside the scope of employment; or
(5) A claim which is brought for a violation of a statute of the
United States under which an action against an individual is otherwise
authorized.
(c) Remedies expressly excluded by the FTCA and therefore barred.
(1) Punitive damages, unless otherwise authorized by 28 U.S.C.
2674;
(2) other remedies not permitted under applicable law; and
(3) Interest before judgment.

Sec. 1000.243 Is there a deadline for filing FTCA claims?

Yes. Claims must be filed within 2 years of the date of accrual.
(28 U.S.C. 2401).

Sec. 1000.244 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?

Six months.

Sec. 1000.245 Is it necessary for a self-governance AFA to include any
clauses about FTCA coverage?

No, it is optional. At the request of Indian tribes/consortia self-
governance AFAs must 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 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.

Sec. 1000.246 Does the FTCA apply to a self-governance AFA if the FTCA
is not referred to in the AFA?

Yes.

[[Page 7245]]

Sec. 1000.247 To what extent must the tribe/consortium cooperate with
the federal government in connection with tort claims arising out of
the tribe/consortium's performance?

A tribe/consortium must follow the requirements in this section if
a tort claim (including any proceeding before an administrative agency
or court) is filed against the tribe/consortium or any of its employees
that relates to performance of a self-governance AFA or tribal
contract.
(a) The tribe/consortium must designate an individual to serve as
tort claims liaison with the federal government.
(b) The tribe/consortium must notify the Assistant Solicitor
immediately in writing, as required by 28 U.S.C. 2679(c) and
Sec. 1000.254.
(c) The tribe/consortium, through its designated tort claims
liaison, must help the appropriate federal agency prepare 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 whether any person involved was cited for violating
a federal, state, or tribal law, ordinance, or regulation;
(7) The tribe/consortium's determination 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 terms
of an AFA when 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 must 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 must assign
and subrogate all the tribe/consortium's rights and claims (except
those against the federal government) arising out of a tort claim
against the tribe/consortium cognizable under the FTCA.
(f) If requested by the Secretary, the tribe/consortium must
authorize representatives of the Secretary to settle or defend any tort
claim cognizable under FTCA and to represent the tribe/consortium in or
take charge of any such action.
(g) If the federal government undertakes the settlement or defense
of any claim or action, the tribe/consortium must provide all
reasonable additional assistance in reaching a settlement or asserting
a defense.

Sec. 1000.248 Does this coverage extend to contractors of self-
governance AFAs?

No. Contractors or grantees providing services to the tribe/
consortium are generally not covered.

Sec. 1000.249 Are federal employees assigned to a self-governance
tribe/consortium under the Intergovernmental Personnel Act covered by
the FTCA?

Yes. Federal employees assigned to a self-governance tribe/
consortium under the Intergovernmental Personnel Act are covered by the
FTCA to the same extent that they would be if working directly for a
federal agency.

Sec. 1000.250 Is the FTCA the exclusive remedy for a tort claim
arising out of the performance of a self-governance AFA?

Yes.

Sec. 1000.251 To what claims against self-governance tribes/consortia
does the FTCA apply?

It applies to all tort claims arising from the performance of self-
governance AFAs under the authority of Pub. L. 93-638, as amended, on
or after October 1, 1989.

Sec. 1000.252 Does the FTCA cover employees of self-governance tribe/
consortia?

Yes. If employees are working within the scope of an AFA, they are
considered part of the Department of the Interior for FTCA purposes.

Sec. 1000.253 How are tort claims filed for the Department of the
Interior?

Tort claims arising out of the performance of self-governance AFAs
should be filed with the appropriate designated Department of the
Interior official and with the Assistant Solicitor, Branch of
Procurement and Patents, Division of General Law, Office of the
Solicitor, Department of the Interior, 1849 C Street NW., Washington,
DC 20240.

Sec. 1000.254 What should a self-governance tribe/consortium or
tribe's/consortium's employee do on receiving a tort claim?

The tribe/consortium or tribe's/consortium's employee should
immediately notify the appropriate designated Department of the
Interior official and the Assistant Solicitor, Branch of Procurement
and Patents, Division of General Law, Office of the Solicitor,
Department of the Interior, 1849 C Street NW., Washington, DC 20240,
and the tribe/consortium's tort claims liaison.

Sec. 1000.255 If the tribe/consortium or its employee receives a
summons and/or complaint alleging a tort covered by the FTCA, what
should a tribe/consortium or employee do?

Subpart M--Reassumption

1000.259 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. 1000.260 When may the Secretary reassume a federal program
operated by a tribe/consortium under an annual funding agreement?

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. 1000.261 What is imminent jeopardy to a trust asset?

Imminent jeopardy means an immediate threat and likelihood of
significant devaluation, degradation,

[[Page 7246]]

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. 1000.262 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. 1000.263 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 death, caused by
tribal action or inaction or as otherwise provided in an AFA.

Sec. 1000.264 In an imminent jeopardy situation, what is the Secretary
required to do?

(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. 1000.265 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. 1000.266 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. 1000.267 What will the notice of reassumption include?

The notice of reassumption 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
which must be taken by the tribe/consortium to eliminate imminent
jeopardy.
(c) A notice that funds to carry out the program 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. 1000.268 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. 1000.269 What information must the tribe/consortium's response
contain?

(a) The tribe/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. 1000.270 How will the Secretary reply to the tribe/consortium's
response?

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

Sec. 1000.271 What happens if the Secretary accepts the tribe/
consortium's proposed measures?

The Secretary must notify the tribe/consortium in writing of the
acceptance and suspend the reassumption process.

Sec. 1000.272 What happens if the Secretary does not accept the tribe/
consortium's proposed measures?

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

Sec. 1000.273 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 if otherwise
provided in the AFA.

Sec. 1000.274 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. 1000.275 May the tribe/consortium be reimbursed for actual and
reasonable ``wind up costs'' incurred after the effective date of
recession?

Yes, to the extent that funds are available.

Sec. 1000.276 Is a tribe/consortium's general right to negotiate an
annual funding agreement adversely affected by a reassumption action?

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

Sec. 1000.277 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 which caused jeopardy to attach do not reoccur.

[[Page 7247]]

Subpart N--Retrocession

Sec. 1000.289 What is the purpose of this subpart?

This subpart explains what happens when a tribe/consortium
voluntarily returns a program to a bureau.

Sec. 1000.290 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. 1000.291 Who may retrocede a program in an annual funding
agreement?

A tribe/consortium. 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. 1000.292 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.

Sec. 1000.293 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. 1000.294 What effect will retrocession have on the tribe/
consortium's existing and future annual funding agreements?

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. 1000.295 What obligation does the tribe/consortium have to return
funds that were used in the operation of the 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. 1000.296 What obligation does the tribe/consortium have to return
property that was used in the operation of the retroceded program?

On the effective date of any retrocession, the tribe/consortium
must return all property and equipment, and title thereto:
(a) 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. 1000.297 What happens to a tribe/consortium's mature contractor
status if it retrocedes a program that is also available for self-
determination contracting?

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

Sec. 1000.298 How does retrocession effect 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. 1000.310 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. 1000.311 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 in the event that trust assets or
resources are found to be in imminent jeopardy.

Sec. 1000.312 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. (See for
example 25 CFR 272.2(r))
(b) Trust assets include:
(1) Other assets, trust revenue, royalties, or rental, including
natural resources, land, water, minerals, funds, 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. 1000.313 What are ``trust functions'' for the purposes of the
trust evaluation process?

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

Annual Trust Evaluations

Sec. 1000.314 What is a trust evaluation?

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

Sec. 1000.315 How are trust evaluations conducted?

(a) Each year the Secretary's designated representative(s) will
conduct trust evaluations for each self-governance AFA. The Secretary's
designated representative(s) will coordinate with the designated
tribe's/consortium's representative(s) throughout the review process,
including the written report required by Sec. 1000.324.
(b) This section describes the general framework for trust reviews.
However, each tribe/consortium may develop, with the appropriate
bureau, an individualized trust evaluation process to allow for the
tribe's/consortium's unique history and circumstances and

[[Page 7248]]

the terms and conditions of its AFA. An individualized trust evaluation
process must, at a minimum, contain the measures in paragraph (e) of
this section.
(c) To facilitate the review process so as to mitigate costs and
maximize efficiency, each tribe/consortium must provide access to all
records, plans, and other pertinent documents relevant to the
program(s) under review not otherwise available to the Department.
(d) The Secretary's designated representative(s) will:
(1) Review trust transactions;
(2) Conduct on-site inspections of trust resources, as appropriate;
(3) Review compliance with applicable statutory and regulatory
requirements;
(4) Review compliance with the provisions of the AFA;
(5) Ensure that the same level of trust services is provided to
individual Indians as would have been provided by the Secretary;
(6) Ensure the fulfillment of the Secretary's trust responsibility
to tribes and individual Indians by documenting the existence of:
(i) Systems of internal controls;
(ii) Trust standards; and
(iii) Safeguards against conflicts of interest in the performance
of trust functions;
(7) Document deficiencies in the performance of trust function
discovered during the review process.
(e) At the request of a tribe/consortium, at the time the AFA is
negotiated, the standards will be negotiated, except where standards
are otherwise provided for by law.

Sec. 1000.316 May the trust evaluation process be used for additional
reviews?

Yes, if the parties agree.

Sec. 1000.317 Can an initial review of the status of the trust asset
be conducted?

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

Sec. 1000.318 What are the responsibilities of the Secretary's
designated representative(s) after the annual trust evaluation?

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

Sec. 1000.319 Is the trust evaluation standard or process different
when the trust asset is held in trust for an individual Indian or
Indian allottee?

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

Sec. 1000.320 Will the annual review include a review of the
Secretary's residual trust functions?

Yes. If the annual evaluation reveals that deficient performance of
a trust function is due to the action or inaction of a bureau, the
evaluation report will note the deficiency and the appropriate
Department official will be notified of the need for corrective action.

Sec. 1000.321 What are the consequences of a finding of imminent
jeopardy in the annual trust evaluation?

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

Sec. 1000.322 What if the trust evaluation reveals problems which do
not rise to the level of imminent jeopardy?

Where problems are caused by tribal action or inaction, the
conditions must be:
(a) Documented in the annual trust evaluation report;
(b) Reported to the Secretary; and
(c) Reported in writing to:
(1) The governing body of the tribe; and
(2) In the case of a consortium, to the governing body of the tribe
on whose behalf the consortium is performing the trust functions.

Sec. 1000.323 Who is responsible for corrective action?

The tribe/consortium is primarily responsible for identifying and
implementing corrective actions, but the Department may also suggest
possible corrective measures for tribal consideration.

Sec. 1000.324 What are the requirements of the review team report?

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

Sec. 1000.325 Can the Department conduct more than one trust
evaluation per tribe per year?

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

Sec. 1000.326 Will the Department evaluate a tribe/consortium's
performance of non-trust related programs?

This depends on the terms contained in the AFA.

Subpart P--Reports

Sec. 1000.339 What is the purpose of this subpart?

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

Sec. 1000.340 How is information about self-governance developed and
reported?

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

[[Page 7249]]

(f) An annual report submitted to the Secretary by each tribe/
consortium as described in Sec. 1000.341.

Sec. 1000.341 What will the tribe/consortium's annual report on self-
governance address?

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

Subpart Q--Miscellaneous Provisions

Sec. 1000.352 How can a tribe/consortium hire a federal employee to
assist with the implementation of an annual funding agreement?

If a tribe/consortium chooses to hire a Federal employee, it can:
(a) Use its own tribal personnel hiring procedures. Federal
employees are separated from federal service;
(b) ``Direct hire'' as a tribal employee. The employee will be
separated from federal service and work for the tribe/consortium, but
maintain a negotiated federal benefit package which is paid for by the
tribe/consortium out of AFA program funds; or
(c) Negotiate an agreement under the Intergovernmental Personnel
Act, 25 U.S.C. 48, or other applicable federal law.

Sec. 1000.353 Can a tribe/consortium employee be detailed to a federal
service position?

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

Sec. 1000.354 How does the Freedom of Information Act apply?

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

Sec. 1000.355 How does the Privacy Act apply?

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

Sec. 1000.356 How will payments be made to self-governance tribes/
tribal consortia?

Payments must be made in advance, as expeditiously as feasible in
compliance with any applicable federal laws. At the option of the
tribe/consortia, payments must be paid on an annual, semi-annual, or
other basis.

Sec. 1000.357 What audit requirements must a self-governance tribe/
consortium follow?

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

Sec. 1000.358 Do OMB circulars and revisions apply to self-governance
funding agreements?

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

Sec. 1000.359 Does a tribe/consortium have additional ongoing
requirements to maintain minimum standards for tribe/consortium
management systems?

Yes. The tribe/consortium must maintain systems and practices at
least comparable to those in existence when the tribe/consortium
entered the self-governance program.

Sec. 1000.360 Can a tribe/consortium retain savings from programs?

Yes. For BIA programs, the tribe/consortium may retain savings for
each fiscal year during which an AFA is in effect. A tribe/consortium
must use any savings that it realizes under an AFA, including a
construction contract:
(a) To provide additional services or benefits under the AFA; or
(b) As carryover under Sec. 1000.362.

Sec. 1000.361 Can a tribe/consortium carry over funds not spent during
the term of the AFA?

For BIA programs, services, functions or activities,
notwithstanding any other provision of law, any funds appropriated
pursuant to the Snyder Act of 1921 (42 Stat. 208), for any fiscal year
which are not obligated or expended prior to the beginning of the
fiscal year succeeding the fiscal year for which such funds were
appropriated shall remain available for obligation or expenditure
during such succeeding fiscal year. In the case of amounts made
available to a tribe/consortium under an annual funding agreement, if
the funds are to be expended in the succeeding fiscal year for the
purpose for which they were originally appropriated, contracted or
granted, or for which they are or for which they are authorized to be
used pursuant to the provisions of Section 106 (a)(3), no additional
justification or documentation of such purposes need be provided by the
tribe/consortium to the Secretary as a condition of receiving or
expending such funds.

Sec. 1000.362 After a non-BIA annual funding agreement has been
executed and the funds transferred to a tribe/consortium, can a bureau
request the return of funds?

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

Sec. 1000.363 How can a person or group appeal a decision or contest
an action related to a program operated by a tribe/consortium under an
annual funding agreement?

(a) BIA programs. A person or group who is aggrieved by an action
of a tribe/consortium with respect to programs that are provided by the
tribe/consortium pursuant to an AFA must first exhaust tribal
administrative due process rights. After that, the person or group may
bring an appeal under 25 CFR part 2.

[[Page 7250]]

(b) Non-BIA programs. Procedures will vary depending on the
program. Aggrieved parties should initially contact the local program
administrator (the Indian program contact). Thereafter, appeals will
follow the bureau's appeal procedures.

Sec. 1000.364 Must self-governance tribes/consortia comply with the
Secretarial approval requirements of 25 U.S.C. 81 and 476 regarding
professional and attorney contracts?

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

Sec. 1000.365 Can funds provided under a self-governance annual
funding agreement be treated as non-Federal funds for the purpose of
meeting matching requirements under any federal law?

Yes. Self-governance AFA funds are eligible to be treated as non-
federal funding for the purpose of meeting matching requirements under
federal law.

Sec. 1000.366 Will Indian preference in employment, contracting, and
subcontracting apply to services, activities, programs, and functions
performed under a self-governance annual funding agreement?

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

Sec. 1000.367 Do the wage and labor standards in the Davis-Bacon Act
of March 3, 1931 (40 U.S.C., 276a-276a-f) (46 Stat. 1494), as amended
and with respect to construction, alteration and repair, the Act of
March 3, 1921, apply to tribes and tribal consortia?

No. Wage and labor standards do not apply to employees of tribes
and tribal consortia. They do apply to all other laborers and mechanics
employed by contractors and subcontractors in the construction,
alteration, and repair (including painting or redecorating of buildings
or other facilities) in connection with an AFA.

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

Article I--Authority and Purpose

Section 1--Authority

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

Section 2--Purpose

This compact shall be liberally construed to achieve its
purposes:
(a) This compact is to carry out Self-Governance as authorized
by Title IV of Pub. L. 93-638, as amended, which built upon the Self
Governance Demonstration Project, and transfer control to tribal
governments, upon tribal request and through negotiation with the
United States government, over funding and decision-making of
certain federal programs as an effective way to implement the
federal policy of government-to-government relations with Indian
tribes.
(b) This compact is to enable the United States to maintain and
improve its unique and continuing relationship with and
responsibility to the tribe through tribal self-governance, so that
the tribe may take its rightful place in the family of governments;
remove federal obstacles to effective self-governance; reorganize
tribal government programs and services; achieve efficiencies in
service delivery; and provide a documented example for the
development of future federal Indian policy. This policy of tribal
self-governance shall permit an orderly transition from federal
domination of Indian programs and services to allow Indian tribes
meaningful authority to plan, conduct, and administer those programs
and services to meet the needs of their people. In implementing
Self-Governance, the Bureau of Indian Affairs is expected to provide
the same level of service to other tribal governments and to
demonstrate new policies and methods to improve service delivery and
address tribal needs. In fulfilling its responsibilities under the
compact, the Secretary hereby pledges that the Department will
conduct all relations with the tribe on a government-to-government
basis.

Article II--Terms, Provisions and Conditions

Section 1--Term

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

Section 2--Funding Amount

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

Section 3--Reports to Congress

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

Section 4--Regulatory Authority

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

Section 5--Tribal Administrative Procedure

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

Article III--Obligations of the Tribe

Section 1--AFA Programs

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

Section 2--Trust Services for Individual Indians

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

Article IV--Obligations of the United States

Section 1--Trust Responsibility

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

Section 2--Trust Evaluations

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

Article V--Other Provisions

Section 1--Facilitation

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

Section 2--Officials Not To Benefit

No Member of Congress, or resident commissioner, shall be
admitted to any share or part of any annual funding agreement or
contract thereunder executed pursuant to this

[[Page 7251]]

compact, or to any benefit that may arise from such compact. This
paragraph may not be construed to apply to any contract with a third
party entered into under an annual funding agreement pursuant to
this compact if such contract is made with a corporation for the
general benefit of the corporation.

Section 3--Covenant Against Contingent Fees

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

Section 4--Sovereign Immunity

Nothing in this compact or any AFA shall be construed as--
(1) affecting, modifying, diminishing, or otherwise impairing
the sovereign immunity from suit enjoyed by the tribe; or
(2) authorizing or requiring the termination of any existing
trust responsibility of the United States with respect to the Indian
people.

In witness whereof, the parties have executed, delivered and
formed this compact, effective the ______ day of, __________ 19____.

THE ____________ Tribe

The Department of the Interior.

By:--------------------------------------------------------------------

[FR Doc. 98-3132 Filed 2-11-98; 8:45 am]
BILLING CODE 4310-02-P

Visit the Official Version

Document Information

Published:: 02/12/1998
Department:: Indian Affairs Bureau
Entry Type:: Proposed Rule
Action:: Proposed rule with request for comments.
Document Number:: 98-3132
Dates:: Comments must be received by May 13, 1998.
Pages:: 7202-7251 (50 pages)
RINs:: 1076-AD20: Tribal Self-Governance
RIN Links:: https://www.federalregister.gov/regulations/1076-AD20/tribal-self-governance
PDF File:: 98-3132.pdf
CFR: (261): 25 CFR 1000.98.); 25 CFR 1000.50(a); 25 CFR 1000.50(b); 25 CFR 1000.50(c); 25 CFR 1000.223(e); More ...