[Title 25 CFR E]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter Vi - OFFICE OF THE ASSISTANT SECRETARY, INDIAN AFFAIRS,]
[Part 1000 - ANNUAL FUNDING AGREEMENTS UNDER THE TRIBAL SELF-GOVERNMENT ACT]
[Subpart E - Annual Funding Agreements for Bureau of Indian Affairs]
[From the U.S. Government Publishing Office]
25INDIANS12004-04-012004-04-01falseAnnual Funding Agreements for Bureau of Indian AffairsESubpart EINDIANSOFFICE OF THE ASSISTANT SECRETARY, INDIAN AFFAIRS,ANNUAL FUNDING AGREEMENTS UNDER THE TRIBAL SELF-GOVERNMENT ACT
Subpart E_Annual Funding Agreements for Bureau of Indian Affairs
Programs
Sec. 1000.80 What is the purpose of this subpart?
This subpart describes the components of annual funding agreements
for BIA programs.
Sec. 1000.81 What is an annual funding agreement (AFA)?
Annual funding agreements are legally binding and mutually
enforceable written agreements negotiated and entered into annually
between a self-governance Tribe/Consortium and BIA.
Contents and Scope of Annual Funding Agreements
Sec. 1000.82 What types of provisions must be included in a BIA AFA?
Each AFA must specify the programs and it must also specify the
applicable funding:
(a) Retained by BIA for ``inherently Federal functions'' identified
as ``residuals'' (See Sec. 1000.94);
(b) Transferred or to be transferred to the Tribe/Consortium (See
Sec. 1000.91); and
(c) Retained by BIA to carry out functions that the Tribe/Consortium
could have assumed but elected to leave with BIA. (See Sec. 1000.101).
Sec. 1000.83 Can additional provisions be included in an AFA?
Yes, any provision that the parties mutually agreed upon may be
included in an AFA.
Sec. 1000.84 Does a Tribe/Consortium have the right to include provisions
of Title I of Pub. L. 93-638 in an AFA?
Yes, under Pub. L. 104-109, a Tribe/Consortium has the right to
include any provision of Title I of Pub. L. 93-638 in an AFA.
Sec. 1000.85 Can a Tribe/Consortium negotiate an AFA with a term that
exceeds one year?
Yes, at the option of the Tribe/Consortium, and subject to the
availability of Congressional appropriations, a Tribe/Consortium may
negotiate an
[[Page 1066]]
AFA with a term that exceeds one year in accordance with section
105(c)(1) of Title I of Pub. L. 93-638.
Determining What Programs May Be Included in an AFA
Sec. 1000.86 What types of programs may be included in an AFA?
A Tribe/Consortium may include in its AFA programs administered by
BIA, without regard to the BIA agency or office that administers the
program, including any program identified in section 403(b)(1) of the
Act.
Sec. 1000.87 How does the AFA specify the services provided, functions
performed, and responsibilities assumed by the Tribe/Consortium and those
retained by the Secretary?
(a) The AFA must specify in writing the services, functions, and
responsibilities to be assumed by the Tribe/Consortium and the
functions, services, and responsibilities to be retained by the
Secretary.
(b) Any division of responsibilities between the Tribe/Consortium
and BIA should be clearly stated in writing as part of the AFA.
Similarly, when there is a relationship between the program and BIA's
residual responsibility, the relationship should be in writing.
Sec. 1000.88 Do Tribes/Consortia need Secretarial approval to redesign
BIA programs that the Tribe/Consortium administers under an AFA?
No, the Secretary does not have to approve a redesign of a program
under the AFA, except when the redesign involves a waiver of a
regulation.
(a) The Secretary must approve any waiver, in accordance with
subpart J of this part, before redesign takes place.
(b) This section does not authorize redesign of programs where other
prohibitions exist.
(c) Redesign shall not result in the Tribe/Consortium being entitled
to receive more or less funding for the program from BIA.
(d) Redesign of construction project(s) included in an AFA must be
done in accordance with subpart K of this part.
Sec. 1000.89 Can the terms and conditions in an AFA be amended during
the year it is in effect?
Yes, terms and conditions in an AFA may be amended during the year
it is in effect as agreed to by both the Tribe/Consortium and the
Secretary.
Sec. 1000.90 What happens if an AFA expires before the effective date
of the successor AFA?
If the effective date of the successor AFA is not on or before the
expiration of the current AFA, subject to terms mutually agreed upon by
the Tribe/Consortium and the Department at the time the current AFA was
negotiated or in a subsequent amendment, the Tribe/Consortium may
continue to carry out the program authorized under the AFA to the extent
adequate resources are available. During this extension period, the
current AFA shall remain in effect, including coverage of the Tribe/
Consortium under the Federal Tort Claims Act (FTCA) 28 U.S.C. 2671-2680
(1994), and the Tribe/Consortium may use any funds remaining under the
AFA, savings from other programs or Tribal funds to carry out the
program. Nothing in this section authorizes an AFA to be continued
beyond the completion of the program authorized under the AFA or the
amended AFA. This section also does not entitle a Tribe/Consortium to
receive, nor does it prevent a Tribe from receiving, additional funding
under any successor AFA. The successor AFA must provide funding to the
Tribe/Consortium at a level necessary for the Tribe/Consortium to
perform the programs, functions, services, and activities or portions
thereof (PFSAs) for the full period it was or will be performed.
Determining AFA Amounts
Sec. 1000.91 What funds must be transferred to a Tribe/Consortium
under an AFA?
(a) At the option of the Tribe/Consortium, the Secretary must
provide the following program funds to the Tribe/Consortium through an
AFA:
(1) An amount equal to the amount that the Tribe/Consortium would
have been eligible to receive under contracts and grants for direct
programs and
[[Page 1067]]
contract support under Title I of Pub. L. 93-638, as amended;
(2) Any funds that are specifically or functionally related to
providing services and benefits to the Tribe/Consortium or its members
by the Secretary without regard to the organizational level within BIA
where such functions are carried out; and
(3) Any funds otherwise available to Indian Tribes or Indians for
which appropriations are made to agencies other than the Department of
the Interior;
(b) Examples of the funds referred to in paragraphs (a)(1) and
(a)(2) of this section are:
(1) A Tribe's/Consortium's Pub. L. 93-638 contract amounts;
(2) Negotiated amounts of agency, regional and central office funds,
including previously undistributed funds or new programs on the same
basis as they are made available to other Tribes;
(3) Other recurring funding;
(4) Non-recurring funding;
(5) Special projects, if applicable;
(6) Construction;
(7) Wildland firefighting accounts;
(8) Competitive grants; and
(9) Congressional earmarked funding.
(c) An example of the funds referred to in paragraph (a)(3) of this
section is Federal Highway Administration funds.
Sec. 1000.92 What funds may not be included in an AFA?
Funds associated with programs prohibited from inclusion under
section 403(b)(4) of the Act may not be included in an AFA.
Sec. 1000.93 May the Secretary place any requirements on programs and
funds that are otherwise available to Tribes/Consortia or Indians for
which appropriations are made to agencies other than DOI?
No, unless the Secretary is required to develop terms and conditions
that are required by law or that are required by the agency to which the
appropriation is made.
Sec. 1000.94 What are BIA residual funds?
BIA residual funds are the funds necessary to carry out BIA residual
functions. BIA residual functions are those functions that only BIA
employees could perform if all Tribes were to assume responsibilities
for all BIA programs that the Act permits.
Sec. 1000.95 How is BIA's residual determined?
(a) Generally, residual information will be determined through a
process that is consistent with the overall process used by the BIA.
Residual information will consist of residual functions performed by the
BIA, brief justification why the function is not compactible, and the
estimated funding level for each residual function. Each regional office
and the central office will compile a single document for distribution
each year that contains all the residual information of that respective
office. The development of the residual information will be based on the
following principles. The BIA will:
(1) Develop uniform residual information to be used to negotiate
residuals;
(2) Ensure functional consistency throughout BIA in the
determination of residuals;
(3) Make the determination of residuals based upon the functions
actually being performed by BIA at the respective office;
(4) Annually consult with Tribes on a region-by-region basis as
requested by Tribes/Consortia; and
(5) Notify Tribal leaders each year by March 1 of the availability
of residual information.
(b) BIA shall use the residual information determined under
subparagraph (a) as the basis for negotiating with individual Tribes.
(c) In accordance with the appeals procedures in subpart R of this
part, if BIA and a participating Tribe/Consortium disagree over the
content of residual functions or amounts, Tribe/Consortium can appeal as
shown in the following table.
------------------------------------------------------------------------
the Tribe/Consortium
If a Tribe/Consortium . . . may . . . and . . .
------------------------------------------------------------------------
(1) Disagrees with BIA's appeal to the Deputy the Deputy
determination. Commissioner. Commissioner must
make a written
determination
within 30 days of
receiving the
request.
[[Page 1068]]
(2) Disagrees with the appeal to the the Assistant
Deputy Commissioner's Assistant Secretary's
determination. Secretary--Indian determination is
Affairs. final for the
Department.
------------------------------------------------------------------------
(d) Information on residual functions may be amended if programs are
added or deleted, if statutory or final judicial determinations mandate
or if the Deputy Commissioner makes a determination that would alter the
residual information or funding amounts. The decision may be appealed to
the Assistant Secretary in accordance with subpart R of this part. The
Assistant Secretary shall make a written determination within 30 days.
Sec. 1000.96 May a Tribe/Consortium continue to negotiate an AFA
pending an appeal of residual functions or amounts?
Yes, pending appeal of a residual function or amount, any Tribe/
Consortium may continue to negotiate an AFA using the residual
information that is being appealed. The residual information will be
subject to later adjustment based on the final determination of a
Tribe's/Consortium's appeal.
Sec. 1000.97 What is a Tribal share?
A Tribal share is the amount determined for a particular Tribe/
Consortium for a particular program at BIA regional, agency and central
office levels under section 403(g)(3) and 405(d) of the Act.
Sec. 1000.98 How does BIA determine a Tribe's/Consortium's share of
funds to be included in an AFA?
There are typically two methods for determining the amount of funds
to be included in the AFA:
(a) Formula-driven. For formula-driven programs, a Tribe's/
Consortium's amount is determined by first identifying the residual
funds to be retained by BIA and second, by applying the distribution
formula to the remaining eligible funding for each program involved.
(1) Distribution formulas must be reasonably related to the function
or service performed by an office, and must be consistently applied to
all Tribes within each regional and agency office.
(2) The process in paragraph (a) of this section for calculating a
Tribe's funding under self-governance must be consistent with the
process used for calculating funds available to non-self-governance
Tribes.
(b) Tribal-specific. For programs whose funds are not distributed on
a formula basis as described in paragraph (a) of this section, a Tribe's
funding amount will be determined on a Tribe-by-Tribe basis and may
differ between Tribes. Examples of these funds may include special
project funding, awarded competitive grants, earmarked funding, and
construction or other one-time or non-recurring funding for which a
Tribe is eligible.
Sec. 1000.99 Can a Tribe/Consortium negotiate a Tribal share for
programs outside its region/agency?
Yes, where BIA services for a particular Tribe/Consortium are
provided from a location outside its immediate agency or region, the
Tribe may negotiate its share from BIA location where the service is
actually provided.
Sec. 1000.100 May a Tribe/Consortium obtain discretionary or competitive
funding that is distributed on a discretionary or competitive basis?
Funds provided for Indian services/programs that have not been
mandated by Congress to be distributed on a competitive/discretionary
basis may be distributed to a Tribe/Consortium under a formula-driven
method. In order to receive such funds, a Tribe/Consortium must be
eligible and qualified to receive such funds. A Tribe/Consortium that
receives such funds under a formula-driven methodology would no longer
be eligible to compete for these funds.
Sec. 1000.101 Are all funds identified as Tribal shares always paid to
the Tribe/Consortium under an AFA?
No, at the discretion of the Tribe/Consortium, Tribal shares may be
left,
[[Page 1069]]
in whole or in part, with BIA for certain programs. This is referred to
as a ``retained Tribal share''.
Sec. 1000.102 How are savings that result from downsizing allocated?
Funds that are saved as a result of downsizing in BIA are allocated
to Tribes/Consortia in the same manner as Tribal shares as provided for
in Sec. 1000.98.
Sec. 1000.103 Do Tribes/Consortia need Secretarial approval to reallocate
funds between programs that the Tribe/Consortium administers under the AFA?
No, unless otherwise required by law, the Secretary does not have to
approve the reallocation of funds between programs that a Tribe/
Consortium administers under an AFA.
Sec. 1000.104 Can funding amounts negotiated in an AFA be adjusted during
the year it is in effect?
Yes, funding amounts negotiated in an AFA may be adjusted under the
following circumstances:
(a) Congressional action. (1) Increases/decreases as a result of
Congressional appropriations and/or a directive in the statement of
managers accompanying a conference report on an appropriations bill or
continuing resolution.
(2) General decreases due to Congressional action must be applied
consistently to BIA, self-governance Tribes/Consortia, and Tribes/
Consortia not participating in self-governance.
(3) General increases due to Congressional appropriations must be
applied consistently, except where used to achieve equitable
distribution among regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be
provided an opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium or the Secretary can identify
and document substantive errors in calculations, the parties will
renegotiate the amounts and make every effort to correct such errors.
(c) Mutual Agreement. Both the Tribe/Consortium and the Secretary
may agree to renegotiate amounts at any time.
Establishing Self-Governance Base Budgets
Sec. 1000.105 What are self-governance base budgets?
(a) A Tribe/Consortium self-governance base budget is the amount of
recurring funding identified in the President's annual budget request to
Congress. This amount must be adjusted to reflect subsequent
Congressional action. It includes amounts that are eligible to be base
transferred or have been base transferred from BIA budget accounts to
self-governance budget accounts. As allowed by Congress, self-governance
base budgets are derived from:
(1) A Tribe's/Consortium's Pub. L. 93-638 contract amounts;
(2) Negotiated agency, regional, and central office amounts;
(3) Other recurring funding;
(4) Special projects, if applicable;
(5) Programmatic shortfall;
(6) Tribal priority allocation increases and decreases;
(7) Pay costs and retirement cost adjustments; and
(8) Any other inflationary cost adjustments.
(b) Self-governance base budgets must not include any non-recurring
program funds, construction and wildland firefighting accounts,
Congressional earmarks, or other funds specifically excluded by
Congress. These funds are negotiated annually and may be included in the
AFA but must not be included in the self-governance base budget.
(c) Self-governance base budgets may not include other recurring
type programs that are currently in Tribal priority allocations (TPA)
such as general assistance, housing improvement program (HIP), road
maintenance and contract support. Should these later four programs ever
become base transferred to Tribes, then they may be included in a self-
governance Tribe's base budget.
Sec. 1000.106 Once a Tribe/Consortium establishes a base budget, are
funding amounts renegotiated each year?
No, unless otherwise requested by the Tribe/Consortium, these
amounts are not renegotiated each year. If a Tribe/
[[Page 1070]]
Consortium renegotiates funding levels:
(a) It must negotiate all funding levels in the AFA using the
process for determining residuals and funding amounts on the same basis
as other Tribes; and
(b) It is eligible for funding amounts of new programs or available
programs not previously included in the AFA on the same basis as other
Tribes.
Sec. 1000.107 Must a Tribe/Consortium with a base budget or base
budget-eligible program amounts negotiated before January 16, 2001
negotiate new Tribal shares and residual amounts?
No, if a Tribe/Consortium negotiated amounts before January 16,
2001, it does not need to renegotiate new Tribal shares and residual
amounts.
(a) At Tribal option, a Tribe/Consortium may retain funding amounts
that:
(1) Were either base eligible or in the Tribe's base; and
(2) Were negotiated before this part is promulgated.
(b) If a Tribe/Consortium desires to renegotiate the amounts
referred to in paragraph (a) of this section, the Tribe/Consortium must:
(1) Negotiate all funding included in the AFA; and
(2) Use the process for determining residuals and funding amounts on
the same basis as other Tribes.
(c) Self-governance Tribes/Consortia are eligible for funding
amounts for new or available programs not previously included in the AFA
on the same basis as other Tribes/Consortia.
Sec. 1000.108 How are self-governance base budgets established?
At the request of the Tribe/Consortium, a self-governance base
budget identifying each Tribe's funding amount is included in BIA's
budget justification for the following year, subject to Congressional
appropriation.
Sec. 1000.109 How are self-governance base budgets adjusted?
Self-governance base budgets must be adjusted as follows:
(a) Congressional action. (1) Increases/decreases as a result of
Congressional appropriations and/or a directive in the statement of
managers accompanying a conference report on an appropriations bill or
continuing resolution.
(2) General decreases due to Congressional action must be applied
consistently to BIA, self-governance Tribes/Consortia, and Tribes/
Consortia not participating in self-governance.
(3) General increases due to Congressional appropriations must be
applied consistently, except where used to achieve equitable
distribution among regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be
provided an opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium or the Secretary can identify
and document substantive errors in calculations, the parties will
renegotiate such amounts and make every effort to correct the errors.
(c) Mutual agreement. Both the Tribe/Consortium and the Secretary
may agree to renegotiate amounts at any time.